Overview

[1] The applicant mother has accepted a contract for a teaching position at an American school in Dubai.

[2] The mother has brought an urgent motion for an order permitting her to relocate to Dubai for 11 months with the parties’ 10-year-old daughter. The daughter would attend the school where the mother will be teaching.

[3] The mother and the daughter have flights to Dubai booked for August 9, 2021, 11 days after the hearing of the motion. The mother says they would return to Canada in the first week of July 2022.

[4] The respondent father opposes the motion. He is concerned about how the daughter’s move to Dubai would affect his relationship with her. He is concerned about the state of the COVID-19 pandemic in Dubai. He is particularly concerned that he would be unable to enforce an Ontario court order once the mother and daughter are in Dubai and that the United Arab Emirates is not a signatory to the Hague Convention.

[5] Each parent believes the order she or he is seeking is in the daughter’s best interests.

Background

[6] The parties married in 2009 in Pakistan. The mother sponsored the father’s immigration to Canada. The daughter was born in 2011. The parties separated in 2014 and divorced in 2018.

[7] The parties signed an agreement in February 2017 that gave the mother custody of the daughter and provided that the daughter would live primarily with the mother. The agreement gave the mother decision-making authority in respect of the daughter’s health and education, after consulting with the father. Under the agreement, the mother was permitted to travel with the daughter in North America without the father’s consent.

[8] The agreement provided that the father could visit the daughter two times per month, and more frequently on holidays, provided the visits did not affect the daughter’s education. The father was also to have weekly telephone access to the daughter.

[9] On the motion before me, the father argued that, at the time the agreement was signed, he was a Canadian resident, sponsored by the mother, and that the mother’s family had threatened to revoke his visa if he did not sign the agreement. The father argued that the agreement was not in the daughter’s best interests. The mother denies the father was pressured to sign the agreement. The mother says the parties relied on the agreement when they applied for a divorce in 2018. She also notes the father has taken no steps to set aside or change the agreement since it was signed.

Timing of the motion

[10] The father argues the mother should not have waited until the last minute to bring her motion and that her request for this matter to be decided on an urgent basis was unfair to him. The father argues the matter should proceed to a case conference, that there should be full disclosure and that there should be a full exploration of enforceable parenting agreements within the United Arab Emirates.

[11] The mother says she first asked the father for his consent to permit the daughter to travel to Dubai in February 2021. The mother says the father said he would need time to consider the request and to seek spiritual guidance. The mother raised the issue with the father again in April 2021. At that time, the father expressed some reservations. On July 2, 2021, the father told the mother, unequivocally, in a text message, that he did not consent to the mother’s request.

[12] The mother, who is self-represented, said that she and the father had been able to work relatively cooperatively as parents in the past. She said she had not expected court intervention to be necessary in this situation and that once it became apparent that she would require a court order, she began an application and requested an urgent motion without delay.

The mother’s proposal

[13] Although it is clear from the evidence that the mother had at one time contemplated remaining in Dubai for up to two years, she is adamant that she now has no intention of staying there for more than 11 months. The mother says the school year ends at the end of June 2022 and that she and the daughter would return to Canada the following week.

[14] The mother has filed a plan which would provide the father with two time periods per day, five days per week (from Sunday to Thursday), to communicate with the daughter via videoconference. One of these time periods is before school and one is after school. The mother has prepared a schedule (Exhibit B to the mother’s affidavit of July 27, 2021) that sets out these time periods and indicates the local time in Ottawa and in Dubai.

[15] The mother says that travel greatly enriched her life, and that she would like her daughter to have the same opportunity. The mother says the school in Dubai where she would be teaching and which the daughter would attend is an excellent school with first-rate facilities; the daughter’s tuition fees would be paid under the mother’s employment agreement. The mother says the daughter is a superb student who welcomes new opportunities.

The father’s concerns

[16] The father argues that because the United Arab Emirate is not a party to the Hague Convention, he would have no way of enforcing his parenting agreement with the mother if the daughter is in Dubai. The father says that if the daughter is in Dubai, and the mother chooses to obstruct his communications with the daughter, there will be nothing he can do about it. Even more concerning to him is his lack of recourse if the mother should decide not to return to Canada with the daughter.

[17] The father is also concerned about the COVID-19 situation in the UAE. He filed some documents from the Centers for Disease Control which indicated that the case count in the UAE is at the “very high” level. The father also said he was not satisfied that the daughter would have appropriate medical insurance.

[18] The father argues there have been times in the past when the mother had failed to honour his rights in respect of the daughter, once when the mother moved to the United Kingdom in 2015 and left the daughter in the care of her parents in Ottawa and later when the mother moved to Richmond Hill and then to Milton, which made it difficult and expensive for the father to spend time with the daughter.

[19] The father argues that the proposed year in Dubai would not be in the daughter’s best interests because it would have a negative impact on his relationship with his daughter. He says, however, that had the mother brought her motion sooner, and had he had more time to do research, he might have been prepared to allow the daughter to travel to Dubai for half the school year.

[20] The father says he would be prepared to care for the daughter in Ottawa while the mother is in Dubai.

Analysis

[21] In the recent decision of Authier v. Noel, 2021 ONSC 4673, Fraser J. considered the legal framework under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) applicable to a request for relocation.

[22] I adopt Fraser J.’s summary and analysis in Authier at paras. 32 to 47:

[32] […] the mobility issue is governed by the new provisions of the Divorce Act, R.S.C. 1985 c.3 (2nd Supp.) (the “Act”) which came into force on March 1, 2021.

[33] Subsection 16(1) of the Act requires any parenting order to be determined by taking into consideration only the best interests of the child.

[34] I am required, in determining the child’s best interests, to “give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”, while considering “all factors related to the circumstances of the child”: ss. 16(2)-16(3).

[35] A non-exhaustive list of factors to be considered in determining the child’s best interests are set out in subsection 16(3) of the Act as follows:

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(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;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(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;

(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;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

[36] The principle that a child should have as much contact as possible with each parent remains a part of the court’s best interests considerations. In essence, Lexi should enjoy as much contact with each of her parents as is consistent with her best interests. The present provision, subsection 16(6), states:

Parenting time consistent with best interests of child

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

[37] Under the Act’s interpretation provisions (subsection 2(1)), relocation is defined as:

a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility — or who has a pending application for a parenting order — that is likely to have a significant impact on the child’s relationship with

(a) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or

(b) a person who has contact with the child under a contact order

[38] Prior to the recent amendments to the Act, the leading relocation case setting out the factors to be considered when determining whether it is in the best interests of a child to move was set out in Gordon v. Goertz (1996) S.C.R. 27. The recent amendments to the Act have formalized the relocation process.

[39] The Act’s new relocation provisions require, before any move with a child, specific advance notice by a person with decision-making responsibility regarding that child. If there is no agreement there is to be a court hearing.

[40] In this instance the Agreement provided that notice of an intended move be given (and it was given prior to the amendments to the Act coming into force). No dispute has been raised concerning the substantive notice given nor was it argued that it was not in accordance with the terms of the Agreement.

[41] Subsection [16.92(1)] of the Act sets out additional factors that are to be considered in determining the best interests of a child where relocation is requested:

Best interests of child — additional factors to be considered

16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,

(a) the reasons for the relocation;

(b) the impact of the relocation on the child;

(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;

(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;

(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;

(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; and

(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.

Burden of proof — person who intends to relocate child

16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.

Burden of proof — person who objects to relocation

(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.

[42] Pursuant to subsection 16.1(2) of the Act, the court may, on application, make an interim parenting order pending the determination of an application.

[43] […]

[44] Interim motions requesting a move of the residence of children pending a trial on the issues of custody and mobility pose their own unique challenges and problems. Justice McSorley in Kennedy v. Hull, 2005 ONCJ 275 (Ont. C.J.) at paragraph 9 stated:

“The problem is that it is difficult, if not impossible, in many cases to complete the extensive child-focussed inquiry required … [based] on the conflicting and incomplete affidavit evidence that is often available on interim motions. The courts’ general reluctance to effect fundamental changes in a child’s lifestyle on interim motions has resulted in a slightly more restrictive approach to interim mobility cases that recognize the short-term nature of interim orders and the summary nature of interim motions.”

[45] Marshman J. in Plumley v. Plumley, (1999), 1999 CanLII 13990 (ON SC), 90 A.C.W.S. (3d) 740, [1999] O.J. No. 3234, at paragraph 7, set out the following considerations to apply when considering relocation requests on interim motions pending trial:

“It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:

A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.
There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.
Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.”

[46] In Datars v. Graham, 2007 CarswellOnt 5257 (SCJ) the court noted a general reluctance to “effect fundamental changes in a child’s lifestyle on interim motions.” One reason given was the concern for even more disruption for the child if the temporary change was reversed at trial.

[47] In Consentino v. Cosentino,2016 ONSC 5621, Pazaratz J. observed that motion judges considering mobility issues on an interim or temporary basis need to be mindful of both short term and long term dynamics, to ensure that the maximum contact principle is not undermined by the unilateral actions of either party.

[23] As Fraser J. said in para. 37 of Authier, under s. 2 of the Divorce Act, “relocation” means a change in the place of residence of a child… “that is likely to have a significant impact on the child’s relationship with…a person who has parenting time…in respect of that child.” The father and the daughter have been seeing each other in person at least every other weekend for some time. A move to Dubai would mean that, subject to any visits that may be arranged, they would not see each other in person at all for almost one year. Although the mother has offered twice-daily video visits, and although seeing loved ones through the screen of an electronic device has become the norm for millions of people around the world since the COVID-19 pandemic began, I accept that the absence of any in-person contact between the father and the daughter would have a significant impact on their relationship, if only for the 11-month period the mother and daughter would be in Dubai.

[24] The father argued that the mother failed to follow the relocation procedure set out in s. 16.9(1) and (2) of the Divorce Act, in that she failed to notify him of the proposed relocation, using a prescribed form, 60 days in advance of the proposed relocation. I am satisfied, however, that the mother notified the father of the proposed relocation in February and then provided him with detailed information in June. At the hearing of the motion, the father’s lawyer, while arguing that the mother had been non-compliant, also properly conceded that the mother had substantially complied with the requirements in s. 16.9, although she had not used the form or provided all required information in accordance with the specified timelines. I do not consider the mother’s failure to follow subsections 16.9(1) and (2) to the letter to be fatal to her relocation request. In coming to this conclusion, I rely on s. 16.9(3), which permits me to rule that subsections (1) and (2) do not apply. I also take into consideration that the mother is self-represented.

[25] As the daughter spends the vast majority of her time with the mother, under s. 16.93(2), the father, who is opposing the relocation, bears the burden of proving that it would not be in the daughter’s best interests.

[26] Although I considered the father’s eye-rolling and head shaking while the mother presented her arguments at the hearing to be disrespectful of the mother and indicative of a degree of animus toward her, the issues raised by the father were not frivolous and were well-presented by his lawyer. The father had not spent as much time with the daughter as he would have liked in the years the mother was living in Richmond Hill and Milton. When the mother moved back to Ottawa at the beginning of the COVID-19 pandemic in March 2020, the father was able to re-establish his relationship with the daughter. The father does not want to let the relationship slip away and he is worried that the mother’s ties to Ottawa are not strong enough to lure her back to the city if she prefers life in the UAE.

[27] The mother is insistent that she plans to go to Dubai for one year only. Her long-term plan is to work at the Ottawa-Carleton District School Board on a principal track. The mother wants the teaching and leadership experience the position in Dubai will afford her. She is an only child, and her parents live in Ottawa. She says she would never abandon her parents. Her parents have ties to Ottawa, including her mother’s sister, who lives in the city. Her parents also own a home in Ottawa. The mother says that in addition to her parents and other relatives, she has friends and a professional mentor in Ottawa.

[28] The issue, of course, is the best interests of the parties’ daughter.

[29] I accept that the daughter would like to go to Dubai with her mother. I cannot accept the mother’s evidence in respect of the daughter’s views, which is hearsay and self-serving. However, notes of a student counsellor at the Safa and Marwa Islamic School dated April 20, 2021, and May 21, 2021, pre-date the father’s refusal to consent to the daughter’s relocation and the mother’s realization that a court proceeding would be required. The notes offer insights into the daughter’s views about the year in Dubai. In the circumstances, I consider the notes to be necessary and sufficiently reliable to be admissible for their truth, although I will not place significant weight on them. The notes reflect that the daughter told the counsellor that she was excited about the prospect of moving to Dubai but also nervous. The daughter is quoted as saying it was “not very scary” because she would get to see a new place and her mom would be with her the whole time. The daughter said she wanted to move to Dubai. She expressed nervousness about talking to her father about going to Dubai.

[30] The father’s counsel’s submission to the effect that, had the father had more time to consider and investigate the mother’s request, he might have been willing to allow the daughter to go to Dubai for half of the school year, is illuminating. The father appears to acknowledge that the experience could be beneficial for the daughter, if not in the manner proposed by the mother.

[31] I find myself unable to evaluate the father’s argument that the mother has not respected his rights in respect of the daughter in the past. The father says when the mother relocated to the United Kingston in 2015 and left the daughter in the care of her parents, her parents did not make it easy for him to spend time with the daughter. The mother says she had effectively fled Canada temporarily at the time, to escape harassment from the parties’ familial and social circle as a result of her decision to separate from the father. The mother says the father had access to the daughter at her aunt’s home at the time. The father also says he was required to incur significant expense to travel to spend time with the daughter when the mother and daughter lived in Richmond Hill and then Milton. The mother, however, says the father may have visited a total of five times whereas she travelled to Ottawa at least once every month during that period to ensure the daughter’s relationship with the father was maintained.

[32] The mother filed some of the daughter’s report cards. There is no doubt the daughter is an excellent student. The mother argues the daughter has done extremely well both academically and in her extra-curricular activities, which include gymnastics and religious studies. The mother believes that, given the opportunity to live and attend school in a different country, while accompanied by the mother, the daughter would thrive.

[33] The mother says the father has two siblings who live near Dubai. The mother says that if she and the daughter are permitted to relocate to Dubai, the mother would hope to foster the daughter’s relationship with that part of the father’s extended family. The mother also says that if she and the daughter are in Dubai, the father could visit his daughter and his siblings at the same time.

[34] I do not consider the evidence offered by the father in respect of the state of the COVID-19 pandemic in the UAE or the evidence offered by the mother about the relative safety of the UAE compared to other countries to have been properly before me. Nonetheless, I accept that the COVID-19 pandemic and safety in general are considerations in this case. It is not an ideal time to travel. However, the mother has been the daughter’s primary caregiver for the daughter’s entire life. The mother is also a highly-educated person with experience working with children, both as a teacher and through the Muslim Children’s Aid Society. I am satisfied that the mother is or will make herself aware of all recommended health and safety-related precautions and protocols and will ensure that she and the daughter follow these precautions and protocols at all times to mitigate any potential risks.

[35] The mother has filed evidence of the medical insurance coverage she and the daughter would have through her employment and evidence that she has made inquiries about coverage that may be available that would be effective before the employment-related coverage takes effect.

[36] The mother says she has always wanted the daughter to have a strong bond with the father and that she has worked hard over the years to promote the relationship between the daughter and the father. The mother says there were times she offered the father parenting time when the father said he was too tired to take advantage of it. I have already mentioned that the mother encourages the father to visit Dubai while she and the daughter are there and I have already referred to the chart the mother prepared setting out the two time periods/day when the father would be able to have videoconferences with the daughter.

[37] I find the mother’s argument that the daughter would benefit academically and socially from the opportunity to live and attend school in a different country to be compelling. The mother’s teaching position would offer the daughter, at a young age, a rare opportunity to experience a very different country and culture, with a parent close at hand. Through the videoconferencing platforms the world has embraced since the beginning of the COVID-19 pandemic, the daughter would be able to maintain her relationship with her father.

[38] In conclusion, the father has not satisfied me that this temporary relocation would not be in the best interests of the daughter. Having considered the “best interests” factors in sections 16(3) and 16.92(1) of the Divorce Act, having reviewed the evidence and having heard the submissions of the parties, I come to the opposite conclusion and find that this temporary relocation would be in the best interests of the daughter.

[39] For these reasons, and given the timing of the commencement of the mother’s contract and that the relocation would be for a period of less than one year, I consider this to be a case where there is good reason to make a relocation order on a temporary basis.

Disposition

[40] In conclusion, I make the following orders:

(1) This is a temporary order.

(2) The Superior Court of Ontario shall retain jurisdiction in respect of this matter.

(3) The habitual residence of the daughter, Sadeqa Naeemah Khan, is Ottawa, Ontario, Canada.

(4) The applicant mother, Mariam Samreen Siddiqi, shall have the right to travel to Dubai, United Arab Emirates, with the daughter, Sadeqa Naeemah Khan, without the consent of the respondent father, Danish Ali Khan. This right is effective immediately and shall terminate at 12:01 a.m., Ottawa time, on July 16, 2022, at which time the daughter shall be in Ottawa.

(5) The mother shall ensure that the daughter returns to Ottawa, to resume living in her habitual residence, no later than midnight, July 15, 2022.

(6) The mother shall ensure that, at all times both while in transit and in Dubai, the daughter has appropriate medical insurance coverage.

(7) The father shall have the right to communicate with the daughter via videoconference up to two times/day, from Sunday to Thursday, in accordance with the schedule marked as Exhibit B to the affidavit of the mother sworn July 27, 2021. If there is a time the daughter will not be available, due to extra-curricular, social or other activities, the mother shall notify the father at least 48 hours in advance, by text or email. Without limiting the father’s right to communicate with the daughter at all of these times, the father shall establish a schedule by selecting one to three of the 10 weekly time periods offered by the mother when he will contact the daughter each week without fail. This schedule shall be provided to the mother and the daughter before the end of August, 2021.

(8) Should the mother and the daughter return to Canada to visit before July 15, 2022, the father shall have liberal in-person parenting time with the daughter, at the mother’s discretion, during the daughter’s stay in Canada.

(9) Should the father visit Dubai before July 15, 2022, the father shall have liberal in-person parenting time with the daughter, at the mother’s discretion, during his stay in Dubai, although, in accordance with the parties’ February, 2017 agreement, the father’s parenting time may not interfere with the daughter’s education, including attendance at school and school-related activities and reasonable time devoted to studying or homework.

(10) There shall be no costs of this motion.

Date: August 3, 2021

COURT FILE NO.: FC-21-1289

DATE: 20210803

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Mariam Samreen Siddiqi, Applicant

AND

Danish Ali Khan, Respondent

COUNSEL: Self-represented Applicant

Eric Letts, for the Respondent

ENDORSEMENT

Madam Justice H. J. Williams

Released: August 3, 2021

Siddiqi. v. Khan, 2021 ONSC 5326

Case Summary

Overview

Background

Timing of the motion

The mother’s proposal

The father’s concerns

Analysis

Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1

Legislation 1