COURT FILE NO.: FS-19-42784
DATE: 2021-12-21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Wazeer Ahmed Edah Tally, Applicant
AND:
Neelam Din, Respondent
BEFORE: Kurz J.
COUNSEL: Tariq Wasey Khan, for the Applicant
Amal Nayyer, for the Respondent
HEARD: December 20, 2021
ENDORSEMENT
[1] Each of the parties move for a suite of relief. Much is in the nature of summary judgment although neither of the parties referred to r. 16 or the test for summary judgment in their materials or arguments. One claim for relief is partition and sale of the matrimonial home although no reference is made to the Partition Act. As set out below, this is not an appropriate case for summary judgment or partition and sale at this time.
[2] Rather, it is appropriate that certain orders be made, some on consent, dealing with (mainly) procedural issues, some not, dealing with temporary substantive issues.
[3] The parties have agreed to the following relief:
The parties’ date of separation is fixed at December 8, 2018.
Each party has leave to conduct questioning of the other for up to half a day, such questioning to be completed by February 28, 2022.
The Applicant shall provide the following outstanding disclosure within 20 days, in accord with the Respondent’s Request for Information, served on the Applicant on May 25, 2021:
a. His Income Tax Returns with attachments from 2016 onwards
b. An affidavit setting out all of his bank accounts, credit cards and lines of credit, along with all statements for those accounts and cards, from January 2016 to present, unless already provided.
c. Updated form 13.1 sworn financial statement, with proof of all entries therein.
d. Complete Equifax Report regarding himself (not just screen shots of that report).
e. Copy of MBNA credit card application.
f. An affidavit, together with supporting documents, explaining whether he is/was on title or had/has a beneficial interest in the property municipally known as 407 Savoline Blvd., Milton, ON L9T 7YZ.
g. An affidavit explaining any other source of income he is earning, whether through business or some sort, Uber, Lyft, etc.
The parties shall have no direct or indirect communication with each other, except through counsel and Our Family Wizard. Such communication to be regarding the children only.
Neither party shall attend at the place of work of the other or within 100 meters of that place of work
Neither party shall attend at the place where the other lives or is expected to be, other than in regard to exchange of children, Applied Behavioural Analysis, or other therapy for either of the children or in-person court attendance.
Commencing on January 1, 2022, and continuing on the first day of each subsequent month until further order, the Applicant father shall pay to the Respondent mother table child support of $937/mo., based on an annual income of $60,431.
The father shall pay to the mother his proportionate share of s. 7 expenses, being 46% of those net expenses, based on his annual income of $60,431 and the mother’s annual income of $73,214. The following will qualify as proper s. 7 expenses:
a. ABA therapy,
b. Play therapy,
c. Any other child-related expense agreed upon in writing; consent to which shall not to be arbitrarily withheld.
- The divorce shall be severed from the corollary relief in this proceeding. Either party is at liberty to move for a divorce.
[4] The remaining relief requested by the mother (who arranged for this motion date and moved first) is:
a. Sole decision-making,
b. Dispensing with the need for the father’s consent to decisions, and
c. Retroactive child support, including s. 7 expenses.
[5] For the father, who late-served his notice of motion and only served his factum on the morning of the hearing of this motion, the issues are:
a. Sole parenting of the children, or in the alternative, equal, shared parenting;
b. Partition and sale of the matrimonial home;
c. Occupation rent on the matrimonial home.
[6] For the reasons that follows, I grant the mother final decision making after consultation with the father and leave to dispense with the father’s consent regarding any matters on which she is entitled to make a final decision regarding the children, both as set out below. I dismiss the balance of claims of the parties.
Background
[7] The parties met while in university. were married for three years, from December 2015 until December 8, 2018. They have two children, Ayaan Abdur Rahman Edah, born June 25, 2016 (“Ayaan”) and Aleeza Sofia Edah Tally, born August 20, 2017 (“Aleeza”).
[8] In her affidavit of October 29, 2021, the mother details a number of incidents when the father struck her, at times in front of the children and on at least two occasions, drawing blood. She asserts that he also apologized to her, stating that when he gets angry, he has trouble controlling his emotions. She also spoke of his attempts to control her, including instructing her that she may not leave the home without his permission.
[9] The mother claims that the children, and in particular Ayaan, have been affected by witnessing this violence. She relies as well on a report from a treating psychiatrist of Ayaan, Dr. Salman Wahid, claiming that the child’s present condition is caused, at least in part from having witnessed family violence.
[10] In his report, Dr Wahid describes Ayaan as experiencing:
a. speech delays,
b. behavioural issues such as hitting, throwing, pushing, hair pulling,
c. anxiousness,
d. separation anxiety,
e. behaviors "pathognomonic of children exposed to severe abuse issues", and
f. "classic signs and symptoms of reactive attachment disorder present in children who have a history of abandonment and negligence through the caregivers."
[11] I note that Ayaan is also engaged in Applied Behavioural Analysis therapy, which seems to indicate that he may be on the autism spectrum. However, there is no present diagnosis of autism.
[12] While Dr. Wahid’s report is helpful in discussing Ayaan’s symptomatology from a psychiatric perspective, I must take any comments that he makes regarding a causal connection between Ayaan’s symptoms and behaviour on one hand, and the father’s behaviour on the other hand, with a substantial grain of salt at this stage of the proceedings. Dr. Wahid does not appear to have met the father. So, all of the information that he is relying upon comes from the mother. Further, he has not been cross-examined. I do not know as well whether he has the expertise, even as a psychiatrist, to opine on a causal connection between the father’s behaviour and Ayaan’s condition. I cannot ignore the fact that many children suffer from those symptoms in intact and violence-free families.
[13] On December 8, 2018 the mother left the parties’ matrimonial home with their two children, because, she says, of the father’s physical and verbal abuse. She went for a time to live with her parents.
[14] In or about March 2019, the father was arrested and charged with various criminal offences against the mother. On November 20, 2020, he pled guilty to one count of assault. He received a sentence that included a term of probation that ended on November 25, 2021. The terms of his probation included non-communication with the mother and completion of the PARS programme. He also took a Caring Dads programme, for fathers involved in domestic abuse. He complied with all of his probation terms.
[15] Despite all of that, the father denies having assaulted or abused the mother. Instead, the father claims that the charges are “concocted” and “fabricated”. They are, he says, the result of a campaign by the mother to exclude him from the children’s lives. He claims that, after consulting family and friends, the mother called him in March 2019, about four months after they separated. At that time, she threatened him, saying “you will never be able to see your children again”. She then followed up his enquiry as to what she meant by saying: “I will teach you a lesson and you’ll see by tonight” before handing up. He implies that that is the night that he was charged.
[16] Thus, even though the father pleaded guilty to one charge of assault, he claims that the charges to which he pled were false and concocted. Yet he had to confirm to the court before whom he pleaded that the allegations against him were substantially correct. That leads to the question of whether he was telling the truth to the criminal court or is doing so now. Both cannot be true.
[17] The father began this proceeding in Brampton, but the mother insisted that it be transferred to Milton because that is where the children ordinarily reside. That resulted in a delay of some months.
[18] The parties appeared before Coats J. for an early case conference on January 13th, 2020. There, they agreed to minutes of settlement which were incorporated into a temporary “without prejudice” order. That order called for the children’s primary parenting to be with the mother. According to Coats J.’s consent order:
a. The father’s access was to be supervised and “as frequent as practical”’
b. The parties were to complete the supervised access intake process within 3 days after the advice of the applicant’s counsel to the respondent’s counsel about the chosen service provider.
c. After two successful consecutive supervised visits with the Applicant, extended family members including sister mother and father were to be allowed to join for subsequent visits.
d. Each party was granted “the right to, jointly or separately attend therapies or professional services medically recommended to the children if same is deemed appropriate by the professionals involved.”
[19] The father argues that none of the above occurred and that the mother is in breach of each of those terms of the Coats J. order. He states that the mother delayed in agreeing to the supervised contact centre, then for months after Covid arrived, in responding to emails from the supervised access centre, attempting to make arrangements for the visits. His visits did not start until September 2020. He adds that he has been unable to participate in Ayaan’s therapy.
[20] The mother responds that much of the responsibility for that state of affairs falls at the feet of the father. He did nothing to deal with the delays in setting up the supervised contact. And he did nothing to follow up with Ayaan’s care providers. He has never met any of them. That task was left to her. It is one that she has taken up, as Ayaan is seeing numerous professionals. She also states that while the supervised contact visits occur once every two weeks, for 1-1 ½ hours, she did not prevent them from being arranged more frequently, if the father wishes to do so.
[21] Both parties refer to the notes of the supervised access to make their point. The father points to the children’s displays of affection for him and his feelings towards them. Yet he also criticizes the mother for the fact that when Ayaan first saw him at a supervised visit, the child hit him on the chest and said “die, die, die”. What this meant for a four-year-old is not clear. It does not prove, as the father continually states, that the mother has “alienated” the children against him. There is no evidence of that. In fact, even the father’s own assertions of the affection both children hold for him are proof against his claim. Yet it is sprinkled throughout his materials.
[22] On the other hand, the mother points to the parts of the supervised visit notes that speak of the father’s difficulties with Ayaan’s behaviour, even over the relatively short periods of time of the visits. As she describes it, he either delegates some of the parenting responsibilities to the supervisor or uses electronics (in the form of a phone or tablet) to parent the child. She claims that this shows that he is not ready to parent the children without supervision.
[23] The mother also speaks to both Ayaan’s reluctance to attend visits and a deterioration of Ayaan’s behaviour after those visits. But she too has difficulties with Ayaan’s behaviour. His behaviour is part of his diagnosis. In addition, courts often hear about children exhibiting difficult behaviour after visits with their non-primary parent, reflecting the difficulties that children have adapting to their parents’ separation.
[24] Both parties seem to admit that, after some delay, both children are getting to know their father again. The mother does not deny that the visits are in the children’s best interests.
[25] One thing that I notice is that the vast majority of what both parents have to say about the visits concerns Ayaan and not Aleeza. It may be that there is less need for supervision or assistance in his contact with her than with Ayaan. I also note that no evidence or argument was raised with regard to expanding the supervised contact already ordered, until I raised the issue. The father’s position was effectively all or nothing. That is, give him full or equal shared parenting, but no alternative to that radical change to the children’s lives.
[26] In considering all of this, I recognize that supervised contact is intended to be a temporary solution to a parenting problem: Merkand v. Merkand, 2006CarswellOnt 712 (Ont. C.A.). It can be beneficial for children who require gradual reintroduction to a parent, or whose safety requires it until such time as the parent is sufficiently rehabilitated and a child is no longer in danger of physical or emotional harm: Najjardizaji v. Mehrjerdi 2004 ONCJ 374, [2004] O.J. No. 5472 (Ont. C.J.). The problems here were family violence, a lack of contact between the father and the children for some time after separation and what appears to be a lack of experience in caring for Ayaan’s special needs during visits. It is to be hoped that this supervision will not last indefinitely.
[27] In Southorn v. Ree, 2019 ONSC 1298 , McDermott J. adopted the comments of MacKinnon J. in Grant v. Turgeon, 2000 CanLII 22565 (ON SC), [2000] O.J. No. 970 22565 (S.C.J.), to state that the test to vary an interim parenting order is “exceptional circumstances where immediate action is required”. I add that, of course there must be a material change in circumstances and the change requested must be in the children’s best interests (see also: Niel v. Niel, 28 R.F.L. (Ont. C.A.), and Kimpton v. Kimpton, 2002 CarswellOnt 5030 (Ont. S.C.J.)).
[28] Here I see no material change in circumstances, let alone exceptional ones. Even accepting that the supervised parenting was intended to be a temporary solution and even understanding that the Coats J. order was “without prejudice” (a term not defined in the order), I have not yet seen a reason to change the parenting terms of the Coats J. order. In particular:
a. The concerns about the father’s past violent behaviour continue. He appears to accept no responsibility for the events that led to the separation or the assault charges. He describes them as concocted. Yet he confirmed that he assaulted her to the Ontario Court of Justice.
b. He does speak of having taken the PARS and Caring Dads courses in the past year. But whatever credit I would have been willing to give him for those steps is lost because of his refusal to accept responsibility for his abusive conduct when the parties were together.
c. I add that where the evidence of the mother conflicts with that of the father, I prefer that of the mother. It is internally consistent, supported in part by the evidence of Ayaan’s treating professionals, and by the father’s guilty plea and admission that the facts of an assault charge were substantially true. On the other hand, there are a number of internal contradictions in his evidence. They are not just regarding the criminal charges, but also, for example, the allegations that the children are alienated from him but are still very close and have a loving bond with him.
d. The father blames the mother for any shortfall in his parenting time. He does so without accepting, for example, that he could have moved before this court to speed up the process of the supervised access registration. Or he could have moved earlier for increased contact with the children. He only served his motion about a week ago, while the mother took it upon herself to arrange this motion date two months ago.
e. The father feels that bringing up a 2010 suicide attempt by the mother, without any further evidence of any subsequent mental health concerns, is relevant to present parenting concerns. It is not.
f. He feels that he should be given full primary residence and decision making or that the arrangements be week-about, without referring to any evidence that either of those arrangements would be in the children’s best interests. The father did not spend more than 1 and a 1/2 supervised hours with the children over any two-week period since some time in 2020. He has had no contact with any of their service providers. He offers no plan to care for them seems to be of little moment to him. Yet he asks the court to hand the children over to him after never having spent one night apart from their mother. This position is so unreasonable that it demonstrates a complete absence of understanding of his children’s needs. Far from being centred on the children’s best interests, as it should be, it shows only his desire to win this motion against the mother.
g. The father offers no meaningful alternative to the court but his full or equal shared parenting to the court. Neither is a realistic for children.
[29] For the reasons set out above,
a. I grant the mother the right to make all decisions regarding the children’s health (including treatment of any kind), education, recreation, and welfare.
b. However before making any such decision she shall consult with the father by offering him, through Our Family Wizard, all information required to offer his input in the decision. If he has not responded within 48 hours, she may decide in his absence. If he has responded she shall consider his response. But in the event of a disagreement, she may make the ultimate decision.
c. Provided that she has consulted with the father as set out above, she may after that consultation process is completed, dispense with his consent to sign any forms required for the children’s health (including treatment of any kind), education, recreation, and welfare.
d. I make no changes to the father’s parenting arrangements. That does not mean that Coats J.’s order is intended to apply until trial. Rather, the father has to show more growth in his recognition of the children’s needs, and offer a better plan to deal with them, at least as a contact parent. I strongly suggest that he retain the services of a social worker with expertise and experience in these matters to assist him in formulating a better plan to become further involved in these children’s lives. He may wish to consider, for example, a social worker on the Office of the Children’s Lawyer’s social work panel.
[30] With regard to the father’s request for partition and sale of the home, the request is premature. While there is no order for exclusive possession of the matrimonial home, the mother and young children have lived together in that home since the time that the father was charged and then removed from the home. The children are quite young and vulnerable. Ayaan, in particular, will likely suffer from the change in routine in being removed from the only home in which he has lived.
[31] Further, the father has not properly styled this motion as one for partial summary judgment under the Partition Act. Even if he had, at this point, I would have found a genuine issue for trial.
[32] With regard to the father’s claim for occupation rent, he has not offered any case in which it has been ordered on an interim basis. I add that:
a. Occupation rent is an exceptional remedy: Foffano v. Foffano, [1996] O.J. No. 3284 (S.C.-Fam.Ct.), as cited in Rezel v. Rezel, 2007 CanLII 12716 (ON SC), [2007] O.J. No. 1460 (S.C.), at para. 22.
b. It is generally part of a claim for an unequal division of net family property under s. 5(6) of the Family Law Act. The test then would be one of unconscionability: Higgins v. Higgins, 2001 CanLII 28223 (ON SC), [2001] O.J. No. 3011 (S.C.), at para. 39. That points to the notion that it should not be determined on an interim basis.
c. It is rarely granted against a spouse in occupation of a home with the parties’ children: Foffano v. Foffano, above, at para. 22.
d. Among the factors that the court can consider is the conduct of the parties. Here, there was domestic violence that first led the mother and children to leave the matrimonial home and that later ousted the father from it, In Wawzonek v. Page, 2015 ONSC 4374, 63 R.F.L. (7th) 317, Pazaratz J. dismissed a claim for occupation rent by a joint owner in circumstances where the parties separated after an incident of domestic violence.
[33] Accordingly, I dismiss the father’s claim to interim occupation rent.
Conclusion
[34] For the reasons cited above, I order:
a. On consent, the relief set out at para. 3 above.
b. I grant the mother to make decisions set out in para. 29(a) - (c), above,
c. I dismiss the balance of relief claimed by either party to this motion.
[35] Regarding costs, both parties agreed that costs of between $7-$10,000 were appropriate and what they would seek if they were successful. The mother has been substantially successful in the issues that were argued. On the other hand, the parties agreed to a great deal of relief, as set out above. I also note the tardiness of the service of the fathers; materials and the unreasonable positions that he took in this motion regarding parenting.
[36] In considering all of those factors in accord with r. 24, I find that the amount of $8,000 is fair, reasonable, and proportionate as well as meeting the reasonable expectations of the payor party. The father shall pay that amount to the mother within 30 days.
“Marvin Kurz J.”
Electronic signature of Justice Marvin Kurz
Date: December 21, 2021