Court File and Parties
COURT FILE NO.: FC-19-264
DATE: 2021-08-20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Naema Affan, Applicant
AND
Faheem-un-din Affan, Respondent
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Cynthia Squire, Counsel for the Applicant Angela Daniels, Counsel for the Respondent
HEARD: June 7, 2021 by video conferencing
REASONS FOR DECISION
M. Smith J
[1] The Applicant Mother and the Respondent Father married on December 14, 1998. They have two children: Hayyan Affan, born on June 22, 2008 and Easha Affan, born on July 15, 2000. Both children reside with the Father.
[2] Between 2018 and 2020, the parties separated and reconciled on a few occasions. The separation has been hostile and highly conflictual. Each party alleges abusive conduct by the other. The children have been exposed to the hostility.
[3] Easha is 21 years old and she is not the subject of the parenting dispute. Rather, the dispute pertains to Hayyan, who is 13 years old.
[4] The Mother’s parenting time with Hayyan has been irregular. The parties blame each other for the relationship difficulties between the Mother and Hayyan.
[5] The Mother says that the situation with Hayyan cannot continue as it is untenable. The parties agree to use the reunification counselling services of Janet Claridge, but they cannot agree on payment of her costs.
[6] Child support, spousal support, section 7 expenses, and the appraisal of a home at 11 Leblanc Street are also in dispute. The parties cannot agree on the date of separation or the amounts that are due and owing by either party.
[7] Together, the parties seek over 40 separate Orders from the Court, demonstrating the high level of conflict that exists between the parties. Some of the Orders being sought cannot be made by virtue of the conflicting evidence.
[8] The issues that I need to determine have been grouped in the following manner:
a. Should any Orders be made regarding interim sole decision-making responsibility or parenting time?
b. What is the date of separation?
c. What is the quantum of child support and should it be retroactive?
d. Is the Mother entitled to spousal support?
e. What are the section 7 expenses?
f. Should the property at 11 Leblanc Street be appraised?
g. What disclosure Orders should be made?
ANALYSIS
[9] The parties disagree on most things, including past events. In my view, the affidavit evidence amounts largely to he said/she said scenarios, making it difficult to resolve conflicting evidence at this stage of the proceedings.
Issue #1 - Should any Orders be made regarding interim sole decision-making responsibility or parenting time?
[10] I am not prepared to make any Orders regarding decision-making authority or parenting time for the Mother because I find that it is premature to do so. I believe that the Office of the Children’s Lawyer (“OCL”) should finalize the investigation and submit its recommendations to the Court. Also, reconciliation counselling should take place before making any further parenting time Orders.
[11] The Mother says that her marriage to the Father has been marked by insidious forms of mental, physical, and emotional abuse. She left the matrimonial home on a few occasions because the situation became intolerable.
[12] The Father denies the Mother’s allegations and accuses her of being verbally, emotionally, and physically abusive towards him and the children. The Father claims that the Mother screams, yells, swears, kicks, and throws items, all in the presence of the children.
[13] The conflict between the parents escalated to the point where the police were called by the Mother in January 2019. Hayyan was present and he left the matrimonial home with the Father.
[14] The Mother commenced her Application in February 2019.
[15] The parties attended a Case Conference on April 17, 2019, where Justice Aitken ordered that the Mother have regular parenting time with Hayyan on Saturdays from 10:00 a.m. to 4:00 p.m.
[16] Justice Aitken requested that the OCL get involved with this family. On May 13, 2019, the OCL consented to provide services pursuant to section 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[17] The parties reconciled during the summer of 2019. As a result of the reconciliation, the OCL discontinued its services on March 23, 2020.
[18] The parties separated again during the spring of 2020.
[19] The conflict continued to escalate where both parties were charged criminally. On July 4, 2020, the Father was charged with spousal assault. On July 6, 2020, the Mother was charged for assault with a weapon. These charges remain outstanding.
[20] The Mother claims that she has attempted to have parenting time with her children, but her requests have been denied by the Father. The Mother accuses the Father of parent alienation. The Father denies these allegations and says that the lack of parenting time is because the Mother does not communicate with her children and that she has abandoned them.
[21] The OCL has been requested to recommence their investigation. In February 2021, the OCL confirmed that a clinician will conduct interviews with the parties and Hayyan. The clinician has not yet made any recommendations to the Court.
[22] Hayyan has continuously been exposed to conflict between the parties, creating a difficult and toxic environment for him. Easha has also not escaped this unfortunate exposure, but more troublesome is that she has now become embroiled in her parents’ adversarial litigation by submitting a letter to the Court, in support of her Father’s position.
Parenting time and reunification therapy
[23] The Mother has been unable to see Hayyan regularly for several reasons, largely due to the blameworthy conduct of the parties:
a. The reciprocal criminal undertakings against the parents prevented that they communicate with one another or attending each other’s residence. It was only in February 2021 that these undertakings were amended to allow communication for the sole purpose of arranging parenting time with Hayyan. The exchange for parenting time was to occur at the OPP parking lot in Carleton Place.
b. From February to May 2021, the parties attempted to exercise the Mother’s parenting time with Hayyan on Saturdays. Some visits did not take place (each party accuses the other of not attending) or it was brief (less than 30 minutes).
c. The Mother claims that Hayyan told her that he lost trust in her because she had started the family proceedings against the Father. Hayyan asked that she terminate the legal proceedings against the Father. The Mother says that Hayyan is suffering severe effects of exposure to the conflict as well as parental alienation.
d. The Father says that Hayyan told him that he never discussed the family law proceedings with his Mother. The Mother is the one that does not reach out to her son, even on his birthday. The Father argues that the parental alienation is of her own doing and that she scares Hayyan.
[24] I am unable to determine if Hayyan’s refusal or reluctance to see his Mother is voluntary, whether he has been influenced by his Father or whether it is due to the Mother’s actions. On the affidavit evidence, I cannot assess which party has more blameworthy conduct. The he said/she said statements are too numerous and cannot be reconciled. Regardless, Hayyan finds himself in the crossfire and he is clearly conflicted. The parties appear to have lost sight of how their behaviour is impacting Hayyan.
[25] Reunification counselling seems to be the logical next step. The parties agreed to use the services of Janet Claridge in November 2020. The Mother states that the Father refused to contribute because he argues that the Mother is the cause of the relationship problems with her son. During argument, the Father says that once the Mother starts paying child support, he will contribute to the costs of the reunification counselling.
[26] The delay in retaining Ms. Claridge’s services is not acceptable and contrary to Hayyan’s best interest. The parents should have set their differences aside and moved forward with the reunification therapy in November 2020.
[27] I find that reunification counselling meets the criteria of a health-related special and extraordinary expense, as set out in s. 7 of the Federal Child Support Guidelines, SOR/97-195 (the “Guidelines”). Hayyan has struggled with the separation and third-party professional assistance is in his best interest. I find that the costs of reunification counselling should be shared by the Mother and Father in proportion to their respective incomes, subject to this expense being disputed at trial, by either party.
[28] The reunification therapy should be implemented immediately, either virtually or in person, and it should occur on a weekly basis (two hours) for the next eight weeks, on dates and times to be determined. The parties shall execute an updated reunification counseling retainer with Janet Claridge, stipulating that all associated fees will be paid proportional to their income.
[29] In addition to the reunification therapy, the Mother seeks parenting time on Saturdays from 10:00 a.m. to 4:00 p.m. (as it is already stipulated in Justice Aitken’s Order dated April 2019), as well as weekly video calls on Thursdays from 7:00 p.m. to 8:00 p.m. Given the difficulties that the Mother encountered in exercising her parenting time with Hayyan, I do not believe that it is in Hayyan’s best interest to increase the parenting time by adding video calls.
[30] Justice Aitken’s Order regarding parenting time on Saturdays remains. In his affidavit materials, the Father deposes that the Mother should continue to see Hayyan on Saturdays. In my view, during the reunification therapy period, Hayyan should still be encouraged to see his Mother on Saturdays, but the parties should be guided by the reunification therapist.
[31] The Mother proposes that the parenting time schedule be reviewed in eight weeks time, to determine whether it should be increased. I agree that the parenting time schedule should be reviewed, but I am not prepared to place a strict timeline at this time. The OCL investigation must first be completed and sufficient reunification therapy must take place to allow Ms. Claridge to assess the situation and make recommendations to the parties.
Sole decision-making responsibility
[32] The Father seeks to have sole decision-making responsibility of the children.
[33] The Mother argues that suitable decision-making arrangements are best canvassed after the opinions of the OCL and reunification therapist have been obtained.
[34] I agree with the Mother’s position.
[35] In my view, the recommendations to be provided by the OCL and the reunification therapist will provide valuable insight to the parties and the Court. I find that it is premature to deal with this issue until such time as additional information is obtained by the third parties.
Next steps
[36] To ensure that this matter is moving forward, I direct that a Case Conference be scheduled before me after October 31, 2021, on a date to be determined by the Trial Coordinator’s Office. The purpose of the Case Conference will be to provide an update to the Court regarding the reunification therapy and the OCL investigation. Further direction on the issue of decision-making responsibility and parenting time will be made after the Case Conference.
Issue #2 – What is the date of separation?
[37] The parties do not agree on the date of separation. They first separated between June and August 2018. The Mother left the matrimonial home sometime between August and November 2018. The parties reconciled in November 2018. The Father vacated the home in or around January 2019. The parties reconciled a second time in or around August 2019. The Mother fled the home in or around the end of May 2020.
[38] The Father argues that the date of separation is November 30, 2019. He says that following this date, the parties resided separately and apart in their home until the Mother moved out on May 31, 2020. He seeks retroactive child support and section 7 expenses from the date of separation.
[39] The Mother says that the date of separation is a triable issue. However, if the Court is prepared to decide this issue, she argues that it should be May 31, 2020.
[40] I agree that this is a triable issue. I am unable to conclude the date of separation on the conflicting affidavit evidence. A trial will be required to determine if the parties were separated during the period of November 30, 2019 to May 31, 2020.
Issue #3 – What is the quantum of child support and should it be retroactive?
[41] The Mother does not dispute that child support is payable. She says that she has not made any child support payments because she has been unable to afford it without a set-off for spousal support.
[42] In his affidavit materials, the Father says that he is seeking retroactive child support from the date of separation (November 30, 2019). However, in his Notice of Motion, he seeks retroactive child support for one year, from April 2020 to May 2021 in the amount of $13,902.00.
[43] In the recent decision of Colucci v. Colucci, 2021 SCC 24, the Supreme Court of Canada reviewed the approach that should be taken for rescission or increase of retroactive child support payments. The Court also interpreted and endorsed the four factors set out in the landmark case of D.B.S. v. S.R.G., 2006 SCC 37.
[44] The Mother claims that retroactive child support is a triable issue, but if I am inclined to award retroactive child support, it should be from June 1, 2020. I agree.
[45] The date of separation is between November 30, 2019 and May 30, 2020. The child support obligations during this period, if any, is a triable issue.
[46] The Mother does not strenuously disagree that a retroactive child support order should be made, after considering the four factors set out in D.B.S. In my view, once the Mother vacated the home at the end of May 2020 and the children remained in the care of the Father, child support was due and owing by the Mother. Applying the D.B.S. factors to this case, I am satisfied that retroactive child support should be ordered from June 1, 2020 onward. I acknowledge that such an award may cause some hardship to the Mother, however, it will be offset, to a certain extent, by the retroactive spousal support she will receive, as detailed in the section that follows.
[47] The Mother concedes that the child support payable is $986.00 per month.
[48] For the period of June 1, 2020 to August 1, 2021, the retroactive child support payable by the Mother to the Father is $13,804.00.
[49] Commencing September 1, 2021, and on the first day of the month thereafter, the Mother shall pay child support of $986.00 per month.
[50] The Father requests that the Mother obtain and maintain a life insurance policy in the amount of $250,000.00, based on her estimated future child support obligations. This matter was not argued at the Motion. I am prepared to grant an Order that the Mother obtain and maintain a life insurance policy to secure her child support obligations. I am uncertain if the Mother has secured existing insurance coverage or whether the sum of $250,000.00 is appropriate. The parties are encouraged to agree on the terms of the insurance policy, failing which, they make written submissions (two pages maximum, excluding supporting documentation), within 60 days of this decision.
Issue #4 – Is the Mother entitled to spousal support?
[51] On the record before me, I cannot conclude with any confidence that the Mother is entitled to spousal support on a compensatory basis. However, I find that the Mother has established entitlement to interim spousal support on a non-compensatory basis.
[52] A party seeking interim spousal support is required to establish entitlement on a prima facie basis. The motion judge is not required to conduct a detailed inquiry into all aspects of the case. Interim spousal support is based primarily on the motion judge’s assessment of the parties means and needs: Haman v. Mantallo, 2020 ONSC 4948 at paras. 124-139; Liddell-MacInnis v. MacInnis, 2021 ONSC 1787 at para. 65.
[53] The Mother claims that between 2003 and 2016, she worked part-time to stay home and raise the children. The Mother only recently started to work on a full-time basis.
[54] The Mother is employed as an administrative assistant with the Canada Revenue Agency. According to the Mother’s financial statement, in 2020, her gross income from all sources was $64,689.77. This amount includes her employment income ($44,119.08), EI/CERB ($6,000.00), and RRSP withdrawals ($14,570.69). The Mother’s expenses total $56,640.96.
[55] The Father is employed as a systems analyst at Carleton University. In 2020, he earned $84,855.00.
[56] The Mother says that since fleeing the matrimonial home in May 2020, her standard of living has declined significantly. She was initially forced to live in temporary accommodations at Lanark County Interval House and is now living with a friend.
[57] The Father argues that most of the family debt was accumulated because of the Mother’s spending habits. The Father says that the Mother has gold and diamond jewelry worth $125,000.00 as well as more than 100 dresses valued at $200.00 to $1000.00, per dress.
[58] The Father denies that the Mother is entitled to spousal support because she has left him with a heavy debt to manage and she has not contributed towards child support. The Father does not believe that the Mother is experiencing financial hardship or that she has made any sacrifices for her career advancement. She has a permanent position and he claims that she receives some international income.
[59] I believe that an interim spousal support award is appropriate in the circumstances because it will relieve some of the economic hardships suffered by the Mother.
[60] During the last three years, based on the Notices of Assessment, the Father’s income has consistently exceeded the Mother’s income by approximately $30,000.00.
[61] Since the separation, the Mother’s standard of living has declined. I accept that she has suffered a greater economic disadvantage due to the separation. The Mother resided in a shelter for four months and she has not yet secured a home of her own. Once the Mother starts paying child support, as detailed below, the gap between her income and expenses will increase. Moreover, I agree with the Mother that her current living arrangement is not sustainable long term and she will require her own home, thereby further increasing her monthly expenses.
[62] I conclude that an interim order for spousal support in the mid-range of the Spousal Support Advisory Guidelines is reasonable, being $398.00 per month.
[63] For the same reasons outlined in the child support section above, I believe that interim spousal support should be retroactive to June 1, 2020.
[64] For the period of June 1, 2020 to August 1, 2021 the retroactive spousal support payable by the Father to the Mother is $5,572.00.
[65] Commencing September 1, 2021, and on the first day of the month thereafter, the Father shall pay spousal support of $398.00 per month.
Issue #5 – What are the section 7 expenses?
[66] The Father says that, based on the parties’ respective incomes, the proportionate shares of the children’s special and extraordinary expenses are: 57% for the Father and 43% for the Mother. These percentages are not in dispute.
[67] The Father claims that the Mother has never paid towards any of the children’s section 7 expenses since June 2018. He seeks an Order that $3,000.00 is owed by the Mother for the section 7 expenses.
[68] The Mother responds that the Father has not provided any receipts for these section 7 expenses.
[69] I agree with the Mother’s position. The claim is unsubstantiated. Although I do not doubt that section 7 expenses have been incurred on behalf of the children, the Father has not filed any evidence to support his claim that he spent $3,000.00. The Father’s request for payment for retroactive section 7 expenses is denied, on a without prejudice basis.
[70] On a go forward basis, the parties shall share the children’s special and extraordinary expenses, proportional to their income. The Mother shall pay 43% and the Father shall pay 57%. The consent of both parties shall be obtained in advance, in writing, through counsel, before such expenses are incurred by either party. Consent shall not be unreasonably withheld. The party requesting reimbursement from the other shall provide proof of payment for the expense incurred. The other party shall provide reimbursement within 14 days of receiving proof of payment.
Issue #6 – Should the property at 11 Leblanc Street be appraised?
[71] The Mother seeks an Order that the parties shall jointly retain a mutually agreeable appraiser to value the property at 11 Leblanc Street (“Leblanc Property”) as of November 30, 2019 and May 31, 2020.
[72] The Father purchased the Leblanc Property in February 2019 and he took possession in August 2019.
[73] Prior to the Leblanc Property purchase, the Father owned a home at 321 Towhee Place (“Towhee Property”). He had purchased it on August 28, 2012 and sold it on May 30, 2019.
[74] The Mother brought a Motion on May 29, 2019, seeking that a portion of the net proceeds of sale of the Towhee Property be held in trust. Justice Shelston ordered that $50,000.00 of the net proceeds be held in trust. Subsequently, the parties agreed to an equalization of the Towhee Property.
[75] During the second reconciliation, the parties resided together at the Leblanc Property between August 2019 to May 31, 2020.
[76] The Father argues that the Mother should not be entitled to an equalization payment for the Leblanc Property when the reconciliation only lasted three months (August 2019 until November 2019) and that all property issues have already been settled.
[77] The Mother’s interest in the Leblanc Property cannot be determined on this Motion. It is a triable issue. That said, if the Mother wishes to obtain an appraisal of the Leblanc Property, she should not be precluded in doing so, but given the dispute on this issue, the costs of this appraisal shall not be shared equally between the parties.
[78] The Mother shall obtain an appraisal of the Leblanc Property, at her own costs, subject to this expense being raised at trial. The Father shall cooperate with the Mother’s appraiser.
Issue #7 – What disclosure Orders should be made?
[79] The Mother seeks an Order that the parties exchange updated financial statements for both disputed dates of separation, being November 30, 2019 and May 31, 2020, with all corroborating documents for the items contained therein. The parties shall include the values of their respective pensions. I find this request to be reasonable and therefore order that it be completed within 60 days of this decision.
[80] The Father seeks an Order that the Mother’s criminal record be disclosed to determine if she has capacity to parent Hayyan. In addition, the Father asks for an Order that the Mother disclose her medical records to assist in assessing the Mother’s behaviour. Both these requests are denied. There is insufficient evidence before me to warrant that such disclosure is necessary in the determination of the issues.
CONCLUSION
[81] I make the following interim, without prejudice Orders:
a. The costs of reunification therapy shall be shared by the Mother and Father in proportion to their respective income (43% and 57%, respectively), subject to this expense being disputed at trial, by either party.
b. The reunification therapy shall be implemented immediately, either virtually or in person, and it should occur on a weekly basis (two hours) for the next eight weeks, on dates and times to be determined. The parties shall execute an updated reunification counseling retainer with Janet Claridge, stipulating that all associated fees that be paid proportional to their income.
c. The issues of sole decision-making responsibility and parenting time are to be revisited, following the completion of the OCL investigation and reunification therapy.
d. A Case Conference is to be scheduled before me after October 31, 2021, on a date to be determined by the Trial Coordinator’s Office. The purpose of the Case Conference will be to provide an update to the Court regarding the reunification therapy and the OCL investigation. Further direction on the issue of decision-making responsibility and parenting time will be made after the Case Conference.
e. For the period of June 1, 2020 to August 1, 2021, the retroactive child support payable by the Mother to the Father is $13,804.00.
f. Commencing September 1, 2021, and on the first day of the month thereafter, the Mother shall pay child support of $986.00 per month.
g. The Mother shall obtain and maintain a life insurance policy to secure her child support obligations. The parties are to agree on the terms of the insurance policy, failing which, they make written submissions (two pages maximum, excluding supporting documentation), within 60 days of this decision.
h. For the period of June 1, 2020 to August 1, 2021 the retroactive spousal support payable by the Father to the Mother is $5,572.00.
i. Commencing September 1, 2021, and on the first day of the month thereafter, the Father shall pay spousal support of $398.00 per month.
j. If the parties are unable to agree on a timeframe for payment of the retroactive support, written submissions (two pages maximum, excluding supporting documentation) may be made within 60 days of this decision.
k. The parties shall share the children’s special and extraordinary expenses proportional to their income. The Mother shall pay 43% and the Father shall pay 57%. The consent of both parties shall be obtained in advance, in writing, through counsel, before such expenses are incurred by either party. Consent shall not be unreasonably withheld. The party requesting reimbursement from the other shall provide proof of payment for the expense incurred. The other party shall provide reimbursement within 14 days of receiving proof of payment.
l. The Mother shall obtain an appraisal of the Leblanc Property, at her own costs, subject to this expense being raised at trial. The Father shall cooperate with the Mother’s appraiser.
m. Within 60 days of this decision, the parties shall exchange updated financial statements for both disputed dates of separation, being November 30, 2019 and May 31, 2020, with all corroborating documents for the items contained therein. The parties shall include the values of their respective pensions.
COSTS
[82] The costs of this Motion are reserved until a determination has been made regarding sole decision-making responsibility and the Mother’s parenting time.
M. Smith J
Released: August 20, 2021
COURT FILE NO.: FC-19-264
DATE: 2021-08-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RE: Naema Affan, Applicant
AND
Faheem-un-din Affan, Respondent
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Cynthia Squire, Counsel for the Applicant Angela Daniels, Counsel for the Respondent
REASONS FOR DECISION
Justice Marc Smith
Released: August 20, 2021