COURT FILE NO.: FC-11-339-3
DATE: 2021/12/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHAIMAA NSARALLAH
Applicant
– and –
MOURAD SARSARI
Respondent
Karen Pelletier, for the Applicant
Self-represented
HEARD: December 7, 2021.
decision
Audet J.
[1] The Respondent father (moving party) brings a motion to vary two final orders made in 2011 and in 2013, to increase his parenting time with the parties’ son as well as various other parenting provisions related to telephone contact, access to information and travel. The mother (responding party) seeks the dismissal of the father’s motion.
Background
[2] The parties were together for a little less than one year, from December 26, 2009 when they married until December 17, 2010 when they separated. The were divorced on September 19, 2012. They have one child from their relationship, Adam, who was born in October 2010 (currently 11 years old).
[3] At the time of their separation, Adam was a young baby. He remained in the full-time care of his mother, as the father left for Morocco for a few months and then moved to Montreal when he returned to Canada. He remains in Montreal to this day.
[4] Shortly after the parties’ separation, the mother commenced an application seeking sole custody of Adam. The father was served with the Application but never attended any appearances. Therefore, the matter proceeded to an uncontested trial during which a final order was made, on June 3, 2011, granting the mother sole custody and the father supervised parenting time every other week (the duration of his parenting time was not specified). In addition, the mother was granted leave to obtain a passport for Adam and to travel with him internationally without the father’s consent (the “2011 Final Order”).
[5] In December 2013, the father served the mother with a Motion to Change the 2011 Final Order seeking unsupervised parenting time with Adam. Although the hearing was scheduled by the father himself, and set to proceed on June 14, 2014, he did not attend the hearing and the motion proceeded without him. Another Final Order was made on that day granting the father unsupervised parenting time with Adam every second Saturday, from 10 a.m. to 3 p.m., to take place in Ottawa (the “2013 Final Order”). Other than providing for child support, and including a police enforcement clause, none of the terms of the 2011 Final Order were otherwise changed by the 2013 order.
[6] On May 15th, 2018, the father married Ghizlane Ifri. Together they have a child, Lina, who was born in February 2021. Ms. Ifri also has a daughter from a previous relationship who is currently 11 years old.
[7] On May 5th, 2018, the mother married Saif Kassab. They also have one child from their relationship, Zacharia, who was born in October 2019.
The current Motion to Change
[8] In August 2019, the father served another Motion to Change seeking to change the 2011 and 2013 Final Orders in the following ways:
- Increasing the father’s parenting time with Adam as follows:
a. For thirty days from the date of my order, every other weekend from Saturday at 6:00 p.m. to Sunday at 6:00 p.m.;
b. For thirty days after the time in section (a) has lapsed, every other weekend from Saturday at 10:00 a.m. to Sunday at 6:00 p.m.;
c. After the time in section (b) has lapsed and on an ongoing basis, every other weekend from Friday at 6:00 p.m. to Sunday at 8:00 p.m. On PD days and long weekends, the parenting time shall start on Thursday at 6:00 p.m., if Friday is a PD day or a holiday and end on Monday at 8:00 p.m., if Monday is a holiday.
- In addition to the regular parenting time above, the father seeks the additional parenting time:
a. Two consecutive or non-consecutive weeks over the 2022 summer holidays. Starting in 2023 and every year thereafter, four consecutive or non-consecutive weeks over the summer holidays;
b. Every other Mid-Winter Break. The Respondent Father's first Mid-Winter Break with the child shall take place in 2023;
c. Half of the Winter Holiday Break ever year starting in 2023;
d. Other time as agreed upon by the parties.
That the father be able to exercise his parenting time in Montreal;
That the father have the right to contact professionals, such as the child's teachers and health care workers and that the mother be required to sign any necessary document to ensure that the father has direct contact with these professionals;
That the mother be precluded from removing the child from Canada without his consent;
That if the mother wishes to travel to Morocco with the child, that she provide the father with at least 60 days notice. In the event that the father also arranges to travel to Morocco while the mother and the child are there, that the father be provided with reasonable parenting time in Morocco as agreed to by the parties.
[9] During a case conference held on January 25th, 2021, the Office of the Children’s Lawyer was appointed to represent Adam. Ms. Notturno was assigned as Adam’s lawyer to ascertain his views and preferences.
Findings of credibility
[10] Unfortunately, it became quickly apparent at the outset of this motion hearing that the father had lied to the court in a very material way. In his affidavit filed in support of his Motion to Change, sworn on November 25, 2021, and in his section 35.1 affidavit sworn the same day, the father represented to the court that he was still in a relationship with his wife, that he continued to live with her, her daughter and their baby girl in their apartment located at 5-9840 Meunier Street, in Montreal, and that he planned to rely on his wife’s support in caring for Adam, should his motion be granted. He represented that he had arranged for Adam to have his own room in his house (and provided a picture of the room itself) for when he would visit him there, and that Adam would get to spend meaningful and quality time with his wife and siblings in Montreal during his parenting time with him.
[11] The uncontested evidence before me (including a sworn affidavit from Ms. Ifri herself) confirms that the father and his wife have been separated since their return from Morocco in August 2021 and that he lives in his own apartment (a one bedroom apartment) which he rented at the beginning of September 2021. At the time he swore his affidavits, he had lived there, separated from his wife and child, for almost three months. According to Ms. Ifri’s evidence, which was not contested, the father does not have any parenting time with Lina by himself. He goes to her apartment occasionally and sporadically for a short period of time to see her. There was never a bedroom available for Adam in her residence (Ms. Ifri stated that she had never seen the bedroom pictured in the father’s affidavit) and given that the father currently rents a one-bedroom apartment, there is no bedroom available in his apartment for Adam either.
[12] While the father explained, during the motion hearing, that he made those representations in his affidavits because he believes that his separation from his wife is only temporary and that they will soon be reunited, it does not change the fact that he lied under oath before this Court. Instead, the father should have been honest with the Court when he swore his affidavits and confirmed that he was currently separated from his wife but that he believed or hoped this separation would only be temporary.
[13] I find as a fact that the father lied because he felt his chances of getting the final order that he is seeking would be significantly enhanced if everyone believed, including this Court, that he was still living with his wife and children.
[14] In light of the father’s intentional misrepresentations to this Court, whenever the parties’ evidence was contradictory, the mother’s evidence was preferred. In addition, I must say that the father’s willingness to lie so blatantly to the Court raises significant concerns about my ability to trust him when he says that if I granted him the relief that he seeks, he would return Adam to Ottawa on time (or at all) after his parenting time in Montreal, and that he would generally follow the terms of the final order I would make.
Analysis
[15] The legal principles applicable to the variation of a final order related to parenting are set out in section 17 of the Divorce Act, RSC 1985, c 3 (2nd Supp). The court may make an order varying, rescinding or suspending, prospectively or retroactively, a parenting order provided that it is satisfied that a change in the condition, means, needs or other circumstances of the parents or the child has occurred since the making of the last order. Section 29 of the Children’s Law Reform Act, R.S.O. 1990, c.C.12, requires that the change in circumstances be “material” for the existing final order to be varied. Despite the difference in wording, in practice the test is the same.
[16] The test for a “material change” was confirmed by the Supreme Court of Canada in L.M.P. v. L.S., 2011 SCC 64. It is a change that is substantial, continuing and that “if known at the time, would likely have resulted in a different order”. This test was further explained in Dedes v. Dedes, 2015 BCCA 194, where the British Columbia Court of Appeal stated:
[25] As articulated in L.M.P., the test for material change is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the order was entered by agreement. A function of the material change threshold is to prevent parties from re-litigating issues that were already considered and rejected; in such cases an application to vary would amount to an appeal of the original order.
[17] I find that there is no material change in Adam’s or the parents’ circumstances which would justify a change in the parenting provisions of the 2011 and 2013 Final Orders. Even if I am wrong in that conclusion, I find that it would not be in Adam’s best interests at this time, and in the current circumstances, to vary the terms of the final orders.
[18] The evidence makes it clear that the father has not been a consistent presence in Adam’s life since he was a baby. Although the existing orders provide him with parenting time every second weekend (between 10 a.m. and 3 p.m. on Saturdays, in Ottawa), the evidence before me confirms that the father has been very inconsistent in the exercise of his parenting time with Adam. Out of a possible 26 visits per year, the father has attended between 3 and 10 visits per year, with the most visits per annum (10 in total) having occurred in 2021 (while this Motion to Change was ongoing). Even during that year, there was a hiatus of three months in the summer of 2021 during which Adam did not see his father at all, as he was in Morocco visiting his family (this was not the first time that the father’s parenting time was suspended for long periods of time as the father was travelling to Morocco). His visits with Adam have also rarely lasted the five hours allowed to him by the 2013 Final Order.
[19] Adam is 11 years old now. He has been in his mother’s full-time care since he was born. While he confirms that he enjoys his time with his father, as scarce and sporadic as they are, he does not want any change in his current living arrangements. Adam has met with his lawyer five times since the OCL was appointed earlier this year, and his position has remained the same. By everyone’s account, Adam is a sweet and happy child who has a big social circle in and out of school. He is passionate about soccer and plays competitively in a local league in Ottawa. He has a very close relationship with his mother, his maternal grandmother (who continues to play a significant role in his life), as well as with his stepfather and new baby brother. He progresses well in school (although he does have an IEP and seems to struggle in certain classes), with no reported behavioural concerns in or out of school.
[20] In September 2019 the mother sought support for Adam at Centre psycho-social to assist him with anxiety and academic issues, and to help him build his independence. Adam and his mother were subsequently referred to a parent/child group that ran once a week for 8 sessions where mom and Adam, and other children and their parents, attended. Adam apparently shared with the worker that he felt anxious about visiting his father in Montreal and that he would feel better if he were to continue to see his father in Ottawa, which is his community. It is not a far stretch to conclude, based on what Adam shared with his lawyer, that his anxiety in 2019 was caused – at least in part – by the legal proceedings initiated by his father to increase his parenting time and be permitted to take Adam to Montreal on weekends.
[21] Adam has shared with his lawyer that his home is in Ottawa and that he has no interest in going to Montreal, and this includes to visit his father. He has grown up with his mother and grandparents and sees that as where he belongs. Adam has limited knowledge of the father’s life in Montreal and says that he has one sister on his father’s side who is a baby and that he has not yet seen her “in real life”. He spoke of the father’s partner having an older daughter that he thinks is 11 years old and that he has seen both of them about four times and the baby only on the phone. It is noteworthy that Adam appeared to have no knowledge that his father has been separated from his wife since the summer (something that his lawyer did not share with him either, for obvious reasons).
[22] Adam is a pre-teen now, and his friends – including his many soccer friends – are at the heart of his life at the moment. When asked whether he wanted to share anything with the judge, he wanted to share that he was “insanely good” at soccer (which made me smile). Given that he has only had brief and sporadic parenting time with his father, often separated by months of absence, it is not difficult to understand Adam’s resistance to being taken away from “his real life” every second weekend to spend time with his father. Moreover, such a parenting schedule would significantly interfere in his ability to continue with his competitive soccer, something that is very important to him.
[23] To support his request for longer periods of parenting time taking place in Montreal, the father explains that the current parenting schedule does not give him the opportunity to spend meaningful time with Adam in his own home, where they could do normal activities in a more natural setting (such as cooking, doing crafts, watching movies, etc.). As the father does not have a place to stay while in Ottawa, he must come and go on the same day, and is limited to spending time with Adam in public places such as shopping centers, amusement parks and centers, restaurants, etc. The drive between Ottawa and Montreal also appears to be burdensome for him.
[24] I acknowledge the difficulties and challenges that the current parenting schedule inflict on the father-son relationship. However, this court must do what is in Adam’s best interests, not what is in the father’s best interests. It is the father who chose to relocate to Montreal shortly after Adam’s birth, and it is the father who chose not to take advantage of all the parenting time he was permitted to have with Adam by previous court orders. Unfortunately, those choices have not been conducive to building between Adam and his father the kind of strong and close relationship that Adam shares with his mother and other important adults in his life.
[25] Adam has been adamant about wanting to maintain his status quo of living with his mother in Ottawa and seeing his father in Ottawa only. Although he likes spending time with his father, he does not want to spend time or overnights with his father in Montreal or Morocco and does not want to share/divide holidays or days off from school with his father. Given Adam’s age, and in the particular circumstances of this case, Adam’s expressed wishes and preferences have a significant weight in the decision that I am making today.
[26] With respect to the father’s request to be permitted to contact professionals, such as the child's teachers and health care workers, this is a right that he already has, as Adam’s parent, but which he has never used to this day. There is no change in circumstances that would now require that this be specifically stated in a court order, more even so given Adam’s age and the fact that he will soon have the capacity to control the disclosure of his personal health information.
[27] By virtue of the 2011 Final Order, the mother has been permitted to travel internationally with Adam since he was a year old. She has not abused that right, and there is no evidence before me that would justify requiring her to now obtain the father’s consent to travel with Adam. This would only force these parents to have unnecessary contact with one another, something that they have not had in many years (all arrangements in relation to visits or contact between Adam and his father are arranged and facilitated through the maternal grandmother), and would very likely lead to parental conflict and/or litigation. Adam does not need this in his life.
[28] As a result, the father’s Motion to Change is dismissed.
Madam Justice Julie Audet
Released: December 8, 2021
COURT FILE NO.: FC-11-339-3
DATE: 2021/12/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHAIMAA NSARALLAH
Applicant
– and –
MOURAD SARSARI
Respondent
decision
Audet J.
Released: December 8, 2021