COURT FILE NO.: FS-19-42127
DATE: 20210715
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Dania Al Kowatli
Applicant
– and –
Othman Berrwin
Respondent
R. Sowley, for the Applicant Mother
R. S. Lakhan, for the Respondent Father
HEARD: May 17, 2021
REASONS FOR JUDGMENT – RELOCATION ISSUE
J.E. Mills j.
[1] The Applicant mother seeks permission to relocate with her child to Lebanon as soon as it is possible to do so, having regard to the limitations imposed on travel due to the current global Covid-19 pandemic. She wants to return home to Lebanon where she expects to have a better life with the child and where she will have significant family support. In Canada, she is alone and has struggled to find meaningful employment.
[2] The Respondent father fears that if his child is moved to Lebanon, he will never see her again. He strenuously opposes the motion.
[3] I must ascertain what is in the best interests of the child.
[4] The issues to be determined are as follows:
i. Do I have the jurisdiction to make the order sought by the Applicant?
ii. If so, does the Applicant need to demonstrate a change in circumstances to obtain an order to relocate?
iii. If so, is it is the best interests of the child to relocate with the Applicant to Lebanon?
iv. If so, how should the new parenting plan be structured?
[5] I have concluded I do have jurisdiction to hear this matter, and the Applicant’s request to relocate with the child is presumptively a change in circumstances which allows her to seek an order to vary the final parenting order. However, due to the poorly defined plan for the future and the failure to provide any meaningful proposal to ensure the child has appropriate parenting time with the Respondent in Lebanon and/or in Canada, I have concluded the relocation request is not in the best interests of the child. The Applicant’s request to relocate with the child to Lebanon is therefore denied.
Jurisdiction
[6] Having reviewed the history of this matter, I am satisfied I have the authority to vary the parenting Order dated November 22, 2016 and made by Justice Clay of the Ontario Court of Justice (“OCJ”). The parenting order is a Final Order. It confirms the parties reached a parenting agreement with the consent of both parties and with each being represented by counsel at the time.
[7] The parenting order granted the mother sole custody of the child with final decision-making authority over all issues in respect of the child, if the parties cannot otherwise agree. The mother must consult the father regarding any significant decisions and fully consider his input, if any. The primary residence is with the mother. The father has access on alternate weekends, Fathers Day, and two non-consecutive weeks for summer vacation. The holidays are shared on a rotating basis.
[8] The parenting order also provides “Neither parent should remove the child from the Province of Ontario for purposes of holiday vacation or other agreed purpose without the written consent of the other Party, such consent not to be unreasonably withheld, or order of the court”.
[9] The parenting order does not address the issue of relocation with or without the child.
[10] On March 29, 2019, Ms. Al Kowatli commenced an application in this Court for a divorce and equalization of property. The application was later amended to also seek an order permitting her to relocate with the child. Mr. Berrwin’s answer requests an order for shared custody and to have the child reside primarily with him.
[11] The parties attended a case conference with Justice Khemani of the OCJ and they agreed to have all issues decided by this Court. By Order dated April 4, 2019, Justice Khemani stayed the OCJ proceedings and directed all matters between the parties be determined by this Court.
[12] The relocation issue was then ordered to be decided as a priority matter by Gibson, J. at the case conference held on January 29, 2021. A decision on this issue will dictate what, if any, issues remain outstanding for a trial. If successful on this application, Ms. Al Kowatli has indicated she will waive any entitlement she may have to spousal support, child support or an equalization of net family property thereby eliminating the need for a trial.
[13] Due to the nature of the relocation request and the geographic distance between Canada and Lebanon, it is impractical to issue an interim order. Further, Lebanon is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (Concluded 25 October 1980) and thus there are limited legal means to require the return of the child if the order is granted on an interim basis. Although framed as a long motion in Gibson, J.’s endorsement, both parties agreed and confirmed their understanding that this is a final determination of the relocation issue. It is not open to the parties to re-argue the relocation issue at a trial.
[14] On consent therefore, this long motion to vary the parenting order proceeded as the trial of the mother’s application for leave to remove the child permanently from Ontario to reside with her in Lebanon, as set out in paragraph 3 of Ms. Al Kowatli’s Notice of Application. The evidence was limited to the affidavits of the parties and the questioning conducted in advance of the hearing. There was no viva voce evidence.
[15] The leave application necessitates a variation of the existing parenting arrangement.
Change of Circumstances
[16] This application was commenced prior to the recent amendments to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Section 35.3 is a transitional provision that stipulates any proceeding commenced and not finally disposed of prior to the amendments coming into force shall be dealt with and disposed of in accordance with the amended Act. The amendments came into force on March 1, 2021. Therefore, my determination of this application shall be in accordance with the new parenting provisions of the Divorce Act.
[17] The recent amendments to the Divorce Act set out the factors to be considered in determining the best interests of the child when making a parenting order and additional factors to be considered when a parent is seeking authority to relocate (s. 16(3) and s. 16.92). This framework of analysis, as codified, replaces the common law test set out by the Supreme Court of Canada in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52. The legislation appears to now set out a complete guide for the court to follow when faced with these very challenging applications.
[18] The framework fails however, to state whether there must first be a change in circumstances before the provisions of s. 16.9 and s. 16.92 of the Divorce Act are to be considered. A change in circumstances was established as the threshold question by the Supreme Court of Canada in Gordon v. Goertz. Without a change in circumstances, the application for relocation would not be considered.
[19] Section 17(5) of the Divorce Act provides that “before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order” and further, the court is required to take into consideration only the best interests of the child as determined by reference to that change. S. 17(5.2) provides that the relocation of a child is deemed to constitute a change in the circumstances of the child for the purposes of subsection (5).
[20] As relocation contemplates a significant geographic move away from the other parent, it will inevitably necessitate a variation to any existing order. Therefore, the provisions of s. 16.9, s. 17(5) and s. 17(5.2) must be read together when considering a variation order to permit the relocation of a child. The parent seeking the order does not need to demonstrate and the court does not need to satisfy itself there has been a change in the circumstances of the child beyond the proposed relocation. This approach was also taken by Trousdale J. in Cote v. Parsons, 2021 ONSC 3719 when considering a recent Motion to Change to allow for the relocation of children.
[21] A brief review the history of the family relationship is necessary prior to considering the best interests of the child.
[22] Both parties were born, raised and educated in Lebanon. Mr. Berrwin immigrated to Canada in 2008 and settled into a two-bedroom rental apartment in Mississauga where he continues to reside today with his mother. He is employed as a Customer Support and Logistics Analyst. Ms. Al Kowatli has a law degree and was employed as a claims adjuster with an insurance company in Lebanon. The parties were married on September 18, 2010 in Lebanon but lived apart until Ms. Al Kowatli was granted permanent residence status in Canada in February 2012. She then moved to Mississauga to live with Mr. Berrwin. The parties disagree as to what were their long-term intentions at the time of the marriage and upon Ms. Al Kowatli’s arrival in Canada.
[23] Ms. Al Kowatli states in her affidavit the move to Canada was always intended to be temporary, until she was granted Canadian citizenship, after which the parties would return to Lebanon to live and to raise a family. Mr. Berrwin states in his affidavit that while he owns a house in Lebanon as well as property in Libya, he always intended to live and raise his family in Canada. His plan was to return to live in Lebanon when he retires.
[24] Mr. Berrwin only paid child and spousal support when compelled to do so by court order. Ms. Al Kowatli’s evidence that he has significantly understated or failed to disclose his true income in order to reduce his financial obligations was uncontested by Mr. Berrwin. He paid child and spousal support based on an imputed income of $50,080 when the Notices of Assessment confirm his actual income was between $59,738 and $77,466 for the years 2015 to 2019. The support arrears for this period remain unpaid. He has undertaken repeated efforts to reduce or terminate his obligation to pay spousal support. Mr. Berrwin has sought orders from the court to end his financial support of Ms. Al Kowatli.
[25] The parenting order was made on consent with provisions for spousal and child support. Although she attended community college and obtained her accreditation as a Social Service Worker in 2018, Ms. Al Kowatli has been unable to find employment even with the assistance of the college and placement agencies. According to her affidavit evidence, Ms. Al Kowatli’s efforts to find employment appear to have ceased in 2019, but the pandemic restrictions and this application may have played a role in her failure to continue with those efforts. She remains financially dependent on Mr. Berrwin and is reliant on Ontario Works for subsidized housing.
The Best Interests of the Child
[26] The best interests of the child is the governing principle in determining whether it is appropriate to permit a parent to relocate with a child (s. 16(1) and s. 16.92 Divorce Act). As the child spends the vast majority of her time with Ms. Al Kowatli as the primary care parent, Mr. Berrwin bears the burden to prove the relocation would not be in the best interests of the child (s. 16.93(2) Divorce Act).
[27] It is acknowledged there is no legal presumption in favour of the primary care parent. Their views are entitled to great respect and the most serious consideration, but it is the best interests of the child that is determinative. It is not the interests or rights of the parents (Gordon v. Goertz).
[28] Pursuant to s. 16.9 of the Divorce Act, if a parent seeks to relocate, notice, in the prescribed form, shall be provided to the other parent at least 60 days prior to the proposed relocation. The notice must set out the expected date of the relocation, the address and contact information for the parent and the child, a proposal as to how parenting time and decision-making responsibility could be exercised and any other relevant information as prescribed by the regulations.
[29] As this matter was first raised at the case conference on January 29, 2021, it predated the implementation of the new relocation provisions to the Divorce Act, and therefore the mandatory notice in the prescribed form was not provided. However, the required information is contained in Ms. Al Kowatli’s affidavit filed for this hearing and the questioning that was conducted.
[30] Equally, Mr. Berrwin has not delivered a formal objection as required by S. 16.91(1)(b)(i), but he has expressed his strong objection to the relocation and did so immediately upon being advised of Ms. Al Kowatli’s intentions. The reasons for his objection and his views on the proposal for the exercise of parenting time are clearly expressed in Mr. Berrwin’s materials filed for this hearing and in the transcript of his questioning. He filed a motion to restrain Ms. Al Kowatli from relocating to Lebanon and sought an order for primary decision-making authority. Mr. Berrwin’s motion was not pursued once it was confirmed with both parties that this hearing would proceed as a trial of the relocation issue.
[31] Ms. Al Kowatli has indicated she will reside with her mother and two sisters in their spacious apartment in Beirut, Lebanon. She proposes to waive her entitlement to spousal and child support which would provide approximately $15,000 per year to the Mr. Berrwin to facilitate extended access with the child in Canada and Lebanon during the school holidays. Mr. Berrwin will also be provided regular access to the child by way of social media and other electronic means.
[32] I must give primary consideration to the physical, emotional, and psychological safety, security and well-being of the child (s. 16(2)) when determining what is in the best interests of the child.
[33] An examination of the s. 16(3) factors to be considered in determining the best interests of the child follows.
16(3)(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability
[34] The child is seven years old and has spent the last year living under Covid-19 restrictions. She has some friends in the community but has attended school online under the supervision of her mother since the start of the pandemic. The child remains in virtual contact with the two or three friends she made during the limited time she was physically attending at school She is too young to have formed real and lasting friendships and any efforts in that regard have been hampered by the lengthy pandemic stay at home orders issued by the Government of Ontario. These orders have also impacted the child’s parenting time with her father. As a younger child, she has fewer ties generally to the community. There is no evidence before me to suggest the child has any emotional issues that may dictate a particular need to maintain stability of the current parenting time of four days per month with Mr. Berrwin.
16(3)(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life
[35] The child has a strong and positive relationship with her mother. She has limited time with her father, but he expresses a close connection with the child. As the paternal grandmother lives with Mr. Berrwin, the child has regular interactions when she attends for parenting time.
[36] There is a dispute as to whether the child has a close relationship with her grandmother. Mr. Berrwin relies on a photo taken at the child’s birth to confirm the bond. This is more than seven years old and fails to verify the nature of their current relationship. He has also provided various undated photos and ones taken in March of this year at the child’s birthday celebration. These photos also do not substantiate his evidence that the child has a close relationship with her paternal grandmother. They are simply snapshots taken at various times in the child’s life when her grandmother was present. There was no evidence from the grandmother or any other person to verify the nature of their relationship.
[37] Mr. Berrwin is now in a common law relationship, but his partner resides in Quebec. The child has not developed any meaningful relationship with the new partner.
[38] Ms. Al Kowatli’s mother and sisters have travelled from Lebanon for extended visits. According to Ms. Al Kowatli’s uncontested evidence, they have developed a close bond with the child. There is no independent evidence to support or dispute this evidence.
16(3)(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse
[39] Both parents can be accused of failing to support the development and maintenance of the child’s relationship with the other. Ms. Al Kowatli lives strictly by the terms of the existing court order and has refused to permit any additional parenting time to Mr. Berrwin without a court order.
[40] When exercising his parenting time, Mr. Berrwin has not willingly facilitated the child having contact with her mother. This is extremely problematic having regard to the age of the child and the clear attachment she has to Ms. Al Kowatli. The evidence as to the traumatic impact on the child of being separated and not having regular contact with her mother was not disputed. The child required counselling through the ROCK program to address the emotional distress she suffered.
16(3)(d) the history of care of the child
[41] Ms. Al Kowatli has always been the significant and primary caregiver for the child. She takes the child to medical appointments and arranged for the child to attend day care and now primary school. She is isolated with no family support in Canada. Her family all reside in Lebanon although they have come to Canada to visit and to establish a personal relationship with the child. Mr. Berrwin admits the child is well cared for by Ms. Al Kowatli. He does not deny Ms. Al Kowatli comes from a highly respected family and that the child is well cared for. There is no suggestion the child has in any way been neglected or mistreated by Ms. Al Kowatli or her family.
[42] She, on the other hand, claims the child’s personal hygiene is not properly maintained when under Mr. Berrwin’s care. In September 2018, Ms. Al Kowatli travelled to Lebanon for medical treatment. Mr. Berrwin refused to allow the child to be taken out of the country and so she lived with him for eight weeks, until Ms. Al Kowatli returned to Canada. The separation was emotionally traumatic for the child. During this time, the child was forbidden to have regular contact with her mother, and she was not taken to school. Her care and personal hygiene were not properly maintained. The child was required to sleep with Mr. Berrwin or to share a single bed with her paternal grandmother.
[43] The child is now seven years old. This sleeping arrangement continues to date on the alternate weekend parenting time. The child is still forced to sleep in a single bed with her grandmother as Mr. Berrwin stated he sees no need to provide a bed for the child due to the limited number of nights she sleeps at his home. Mr. Berrwin admits he does not engage in attending to her personal care. The child only has “half baths” when in his care as he is apparently unable to wash her hair. The child has told her mother that she is left unsupervised watching YouTube videos for long periods of time.
16(3)(e) the child’s views and preferences, giving due weigh to the child’s age and maturity, unless they cannot be ascertained
[44] The child’s views and preferences were not offered into evidence. She has only just turned seven years old and would not be mature enough to express a thoughtful opinion on this very important issue. There was no independent assessment conducted to provide the court with any guidance on this issue.
16(3)(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage
[45] Both parents are of Lebanese heritage and they participate in Islamic religious and cultural traditions. While the child would be fully immersed in these cultural, linguistic, religious and spiritual experiences in Lebanon, she is able to engage in the Lebanese culture in Canada by attending an Islamic Centre, by taking Arabic language classes and by participating in the local Lebanese community.
[46] The child’s Canadian cultural heritage must not be ignored. She was born in Canada and, but for six months as an infant, she has resided only in Canada. Ms. Al Kowatli provided no plan to protect the child’s Canadian heritage, other than a suggestion she would be permitted to spend part of her summer vacation time in Canada. There was no detailed commitment as to how the child’s Canadian identity would be preserved.
16(3)(g) any plans for the child’s care
[47] Ms. Al Kowatli has provided no plan for the child’s care beyond statements that they will live with her family in Beirut and that the child will attend a private school, offering her a better education than she could hope to obtain in Canada. There is no real parenting plan proposed other than a statement that Mr. Berrwin will have extended access with the child in both Canada and Lebanon during school holidays and that he will have regular access for the rest of the year by social media and other electronic methods. No details of how or when this would occur were provided. No schedule was proposed for how the virtual or physical visitations would take place, nor was there any plan submitted as to how the child would be brought to Canada. She is too young to travel so far as an unescorted passenger. There was no child focussed assessment of the proposed parenting plan.
16(3)(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child
[48] Ms. Al Kowatli has demonstrated she is more than capable of caring for and meeting the needs of the child. The child lives with her the vast majority of the time and Mr. Berrwin confirms he has no concerns with the child’s wellbeing. With support from her extended family in Lebanon and with her expected employment prospects, I am confident Ms. Al Kowatli would continue to care for and meet the needs of the child if permitted to relocate.
[49] Mr. Berrwin appears to need assistance in addressing the child’s dietary needs and her personal hygiene if he were to have her for extended parenting time over the summer months. Ms. Al Kowatli’s evidence in this regard was not directly disputed. Half baths, failing to wash or brush her hair, and lax enforcement of dental routines would not be appropriate for any length of time. Failing to adhere to the child’s dietary routine is not in the child’s best interests. Mr. Berrwin’s ongoing failure to provide a bed for the child to sleep independently is also of great concern. It suggests she is treated as less than a visitor on her weekend stays. It is no answer to say that the limited time she sleeps at the home does not warrant providing a bed for the child.
16(3)(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child
[50] The parties have both expressed they do not trust the other. Mr. Berrwin is fearful that if allowed to relocate, Ms. Al Kowatli will ensure he never sees the child again. Ms. Al Kowatli does not trust Mr. Berrwin to provide adequate care or give proper attention to the child when she is with him, and she does not trust him to provide appropriate financial support for herself or the child.
[51] Neither parent has demonstrated an ability nor willingness to communicate and cooperate on matters affecting the child. Legal and financial threats are frequently issued by the parties. A poorly defined parenting arrangement requiring extensive international travel is unlikely to be successful if the parties fail to cooperate and fail to show respect for each other. The best interests of the child demand the parents to properly and respectfully communicate and cooperate with each other, irrespective of the time or distance specified in a parenting arrangement.
16(3)(j) any family violence and its impact
[52] There is no evidence of physical violence, although Mr. Berrwin has been financially and emotionally controlling in his dealings with Ms. Al Kowatli, who was entirely dependent upon him for support. She was a new immigrant and a new mother. She did not work outside of the home. She was isolated from her family. In these circumstances, Mr. Berrwin’s controlling behaviour is a form of family violence.
[53] It is not disputed that without the consent of Ms. Al Kowatli, Mr. Berrwin brought his mother from Lebanon to Canada and moved her into the matrimonial home. This resulted in domestic conflict between Ms. Al Kowatli and her mother-in-law. Without the knowledge or consent of Ms. Al Kowatli, Mr. Berrwin filed the registration of birth naming the child after his mother, purportedly in accordance with Middle Eastern traditions. Ms. Al Kowatli was denied the opportunity to have any input or involvement in the legal name given to her child, a name that carried feelings of ill will for Ms. Al Kowatli. Mr. Berrwin’s refusal to allow her to be involved in the naming of the child is clear evidence of his emotional control.
[54] During the marriage, Mr. Berrwin placed Ms. Al Kowatli in a position of total financial dependency. Shortly after the child was born, Ms. Al Kowatli returned to Lebanon with the consent of Mr. Berrwin. While in Lebanon, she regularly communicated with Mr. Berrwin, sending photos, text messages and participating in Skype video calls. During this period, she concluded the marriage was irretrievably over. She communicated with officials at the Canadian Embassy in Beirut and followed their advice that she return to Canada to deal with her family law matters. Ms. Al Kowatli returned with the child to find her bank account had been closed and her credit card cancelled by Mr. Berrwin. She was forced to move into a women’s shelter with the child until she was placed in government subsidized housing.
[55] He has also been financially controlling after the separation. He only paid child and spousal support when ordered to do so by the court. He has made repeated threats and efforts to terminate or reduce the spousal support entitlement at a time when he knew Ms. Al Kowatli was unemployed, and during a global pandemic that has significantly affected many economic sectors in this country. By his conduct, Mr. Berrwin has confirmed the evidence of Ms. Al Kowatli as to his coercive and controlling behaviour is not overstated or exaggerated.
[56] There is no evidence from the parties nor any independent evidence to suggest the child’s physical, emotional and psychological safety and security is at risk with either parent, however this ongoing pattern of serious emotional and financial intimidation by Mr. Berrwin is not in the best interests of the child.
[57] In addition, the s. 16.92(1) relocation factors to be considered in determining the best interests of the child are as follows.
16.92(1)(a) the reasons for the relocation
[58] Ms. Al Kowatli has provided evidence that she has not been able to find suitable employment in Canada and therefore must remain financially dependent on Mr. Berrwin and on the social welfare system. Ms. Al Kowatli is now in a position of extreme financial vulnerability. In Lebanon, she has a law degree and purportedly better prospects of employment that are more in keeping with her abilities. She is confident she will obtain meaningful employment that will provide an income to allow she and the child a higher standard of living than they can ever hope to have in Canada. Further, she wishes to relocate to have the help and support of her family, with whom the child has a close and loving relationship. Ms. Al Kowatli has no such support system in Canada.
16.92(1)(b) the impact of the relocation on the child
[59] The proposed relocation will have a profound impact on the child. But for a six month period when she was an infant, the child has lived exclusively in Canada. She is young and has not yet developed strong connections, but she will be separated from Mr. Berrwin and taken from the only community she has ever known. She will be removed from Canada and taken to a country that is subject to several Government of Canada Travel Advisories warning travellers to “exercise a high degree of caution in Lebanon due to an unpredictable security situation and the risk of terrorist attack”. Ms. Al Kowatli dismissed the risks of travel to Lebanon and suggested that it was no more dangerous than the risks of living in Toronto or Mississauga, which have both experienced gun violence and crime. In her view, the crime rate in Canada is equivalent to that in Lebanon, when examined on a per capita basis. Further, Ms. Al Kowatli stated in questioning that she would not travel to the areas of Lebanon that are subject to the strongest warnings from the Canadian government.
[60] Mr. Berrwin strongly disputes Ms. Al Kowatli’s depiction of life in Lebanon. He left Lebanon because of the civil, political and economic strife, where issues of war, terrorism and political corruption are commonplace. He is proud of his Lebanese heritage, but he sought out a life of safety, stability and employment opportunities in Canada.
[61] The parties clearly have very different views of daily life in Lebanon.
[62] Considering the issue from the child’s perspective, there will be significant disadvantages to living in a country of political and social instability. The Greater Toronto Area is certainly not immune from issues of crime and gun violence. I have no independent evidence of what it is like to live in Lebanon. The parties each offer their own views, no doubt coloured by the fact of this hearing. I do not accept either version as being truly representative, in that daily life in Lebanon is not likely as rosy a picture as painted by Ms. Al Kowatli nor as dire as described by Mr. Berrwin. In the circumstances, I can only be guided by the various Travel Advisories issued by the Canadian Government and conclude the child is likely to have greater personal safety and security if she were to remain living in Canada.
[63] Ms. Al Kowatli intends to provide the child with private school education but has offered no evidence as to how it would offer greater opportunities than the child would receive from a public school education in Ontario. In the circumstances, I must infer there are no substantive differences.
[64] Mr. Berrwin has paid spousal and child support, but only after being ordered to do so by the Court and based on significantly underrepresented income. The child is well cared for and her needs are being met at this time by her mother. Absent the assertions of Ms. Al Kowatli, I have no evidence that her needs would be better met in Lebanon without the financial or emotional support of Mr. Berrwin.
[65] Ms. Al Kowatli has no confirmed employment nor a plan for meeting the needs of the child, other than the expectation her family will provide housing and financial support until she and the child are settled. There was no evidence offered by the family members to confirm they will provide for Ms. Al Kowatli and the child.
[66] With the uncertainty of the pandemic and the ongoing Covid-19 travel restrictions, Ms. Al Kowatli is unable to search for employment opportunities, residential housing or private schools until she has a better understanding of when she may be able to relocate with the child. I must however view this issue at this time from the perspective of the child who will be removed from Canada to Lebanon with some measure of financial and residential insecurity. I must find that Ms. Al Kowatli’s hopes for a better life in Lebanon in the future without a firm plan in place for the present will have a negative impact on the child.
16.92(1)(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons
[67] Mr. Berrwin spends only four days per month with the child. Mr. Berrwin is also entitled to two non-consecutive weeks in the summer, but it is unclear whether he has ever exercised the summer vacation parenting time. Ms. Al Kowatli has the child at all other times and is responsible for attending to all physical, medical, psychological, social and educational matters related to the child. During the pandemic restrictions, Ms. Al Kowatli also attended to facilitating the child’s online learning.
[68] Mr. Berrwin is accused of leaving the child alone to watch television or YouTube videos during her visits. He denies this and claims instead to make every effort to ensure that his parenting time with the child is enjoyable and enriching. He reads to her at bedtime and engages in physical activities when possible.
[69] In this pandemic era, I acknowledge that both parties will have had their best intentions for child focussed activities limited by the stay at home orders. It cannot be disputed that Ms. Al Kowatli spends significantly more time and is substantially more involved with the child’s life.
16.92(1)(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement
[70] As noted above, this matter was initiated at a Case Conference held on January 29, 2021 prior to implementation of the formal notice requirement. I am satisfied however that Ms. Al Kowatli has substantively complied with the notice requirements under s. 16.9. The prescribed form of notice was not followed, but the necessary information was provided by Ms. Al Kowatli to Mr. Berrwin by way of affidavit evidence and through the questioning process. There are no other notice requirements in the agreement of the parties nor in the parenting order with respect to relocation. Ms. Al Kowatli has complied with her obligations under s. 16.9.
16.92(1)(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside
[71] The current parenting order provides that “[N]either parent should remove the child from the Province of Ontario for purposes of holiday vacation or other agreed purpose without the written consent of the other Party, such consent not to be unreasonably withheld, or order of the court”. There are further provisions about facilitating travel for vacation purposes. There are no provisions in the parenting order to specify, limit or restrict the geographic area in which the child is to reside.
16.92(1)(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses
[72] The proposal put forward by Ms. Al Kowatli is vague. It generally provides that Mr. Berrwin would be given liberal parenting time during the school holiday periods both in Canada and in Lebanon, and that the child would be made available to Mr. Berrwin for parenting time if he was visiting family in Lebanon. There are no specifics as to the amount of time being offered nor has a schedule been proposed. “Liberal parenting time” was not defined.
[73] To enable Mr. Berrwin to exercise parenting time with the child, Ms. Al Kowatli’s proposal provides she will waive all spousal and child support obligations going forward, providing approximately $15,000 per year to offset the added travel expenses. There is no provision for how the transfers of the child would be done and there is no offer by Ms. Al Kowatli to bring the child to Canada at any time in the future. The suggestion is that Mr. Berrwin must travel to Lebanon, a country that he believes to be unsafe, in order to exercise his parenting time with the child. Alternatively, if he wished to bring the child to Canada to exercise his parenting time in the summer, Mr. Berrwin would be required to make two round trip flights to Lebanon to accompany the child’s travel. This is unreasonable, even taking into account the added financial resources that would be afforded to Mr. Berrwin.
[74] In addition, Ms. Al Kowatli proposes to facilitate telephone and Skype access on a weekly basis. During the pandemic, the child attended virtual schooling, so she is familiar with using online resources to maintain personal relationships. This would however be significant change from the in-person parenting time she currently has with Mr. Berrwin. Considering the geographic distance involved this aspect of the parenting proposal is not unreasonable in principle, but Ms. Al Kowatli’s failure to provide any form of schedule for the calls or meetings leaves me with no ability to ascertain if her proposal in this regard is in fact reasonable.
16.92(1)(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement and the likelihood of future compliance
[75] Ms. Al Kowatli has been fully compliant with the existing parenting order but for one occasion in the very early days of the Covid-19 pandemic when she refused to send the child for parenting time with Mr. Berrwin. She did however promise to make up the time.
[76] There was a suggestion by Mr. Berrwin that he is not informed of all aspects of the child’s life and that Ms. Al Kowatli has marginalized his involvement in the child’s life. The evidence he provided in this regard is an email from Ms. Al Kowatli reporting on the advice of a pediatric appointment she attended with the child and the recommendations of the physician respecting the child’s diet. This communication contradicts rather than supports his assertion of being marginalized. Mr. Berrwin has the authority to directly contact any of the child’s medical practitioners. If he has not done so, he cannot allege Ms. Al Kowatli is failing to keep him informed of the child’s health or wellbeing.
[77] Ms. Al Kowatli has demonstrated she respects the Canadian legal process and the orders issued by this Court. I have every reason to believe she will continue to do so in the future.
Conclusions
[78] Once again, as the child spends the vast majority of her time with Ms. Al Kowatli as the primary care parent, Mr. Berrwin bears the burden to prove the relocation would not be in the best interests of the child (s. 16.93(2) Divorce Act). He has met his burden.
[79] Considering all of the factors required to determine the best interests of the child, and having given no consideration to whether Ms. Al Kowatli would relocate without the child or change her plans for relocation if the child’s relocation was prohibited (as required by s. 16.92(2) of the Divorce Act), I conclude it is in the child’s best interests to deny the application.
[80] Ms. Al Kowatli has the primary care and sole decision-making authority for the child. Her wishes are entitled to significant respect and serious consideration. I have given much weight to the financial vulnerability and social isolation she suffers in Canada. It is not in the child’s best interest to have her mother subjected to the ongoing coercive and controlling behaviour of her father. It is not in the child’s best interests to be forced to co-sleep with her elderly grandmother. It is not in the child’s best interests for her care and personal hygiene routine to be ignored when spending time with her father. It is especially not in the child’s best interests to be denied access to her mother by telephone or by digital means when she is with her father. There are factors to support the relocation application of Ms. Al Kowatli as being in the best interests of the child.
[81] However, the poorly defined parenting plan and the impact a relocation would have on the child significantly weigh against granting Ms. Al Kowatli leave to relocate with the child to Lebanon. The safety and security risks cannot be ignored. The lack of any specifics with respect to how Mr. Berrwin will be permitted to meaningfully engage in parenting time with the child is not reasonable and it is not in the child’s best interests. While I am sympathetic to the limitations placed on Ms. Al Kowatli due to the Covid-19 pandemic and the current travel restrictions, it is not in the child’s best interests to relocate without any assurances of stability and without a clearly defined plan to ensure she is able to maintain a relationship and parenting time with Mr. Berrwin and with his extended family.
[82] As I have found it is not in the best interests of the child to allow Ms. Al Kowatli to relocate, there is no need to consider how the parenting plan should be structured. The current parenting plan shall continue.
[83] Ms. Al Kowatli’s application for leave to relocate with the child is dismissed.
[84] I would encourage the parties to resolve the issue of costs. If they are not able to do so, written submissions may be made, limited to two pages plus a Bill of Costs and any offers to settle. The respondent shall have fifteen days to serve and file his submissions, and the applicant shall have ten days thereafter to respond.
J. E. Mills, J.
Dated: July 15, 2021
COURT FILE NO.: FS-19-42127
DATE: 20210715
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Dania Al Kowatli
Applicant
– and –
Othman Berrwin
Respondent
REASONS FOR JUDGMENT
J.E. Mills J.
Released: July 15, 2021