Court File and Parties
COURT FILE NO.: FS-22-00028675-0001 DATE: 20220804
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Hanan Abdulmalik AND: Michael Cassidy
BEFORE: Justice Shore
COUNSEL: A. Allidina for the Applicant M. White for the Respondent
HEARD: August 4, 2022
Endorsement
[1] The Applicant Mother is seeking an order enforcing the terms of a Separation Agreement, dated January 31, 2022, which permits her to travel to Ethiopia or a country of her choosing with the parties’ two children during their summer vacation. The Respondent Father has refused to permit her to travel with the children.
[2] For the reasons below, I am enforcing the terms of the separation agreement and permitting the Mother to travel to Ethiopia with the children for the rest of the summer.
[3] The family has lived in many countries over the years, including Canada, Ethiopia, UAE, and Sudan. The children lived in Ethiopia until May 2021, when the Father took the children to Toronto. When the Father sought to remain in Toronto with the children the parties began negotiations, which led to the parties signing the Separation Agreement, dated January 31, 2022.
[4] Under the Agreement, the children will have their primary residence in Ontario, but they will reside with their mother for the entire summer break and “[t]he parenting-time shall take place in Ethiopia or another country of Hanan’s choosing.”. The Mother still lives in Ethiopia, although she often travels for work.
[5] The parties have been following the terms of the agreement until now. Now that it is the Mother’s turn to travel with the children, the Father is not willing to abide under the terms of the agreement. The Father cannot take the benefits from the Agreement and then refuse to grant the same rights to the Mother. Agreements should be respected.
[6] When the parties signed the agreement, it can be assumed that they believed the terms were in the best interest of the children. There was nothing in the Father’s material or submissions that persuaded me that it was now not in the best interest of the children to travel with their Mother.
[7] The Father should have brought a motion or started an application if he wanted to change to the travel provision in the Agreement. He did not do so. Instead, he has relied on self-help.
[8] Most of the Father’s concerns were present before the parties signed the Agreement. His argument that he has concerns because Ethiopia is not a signatory to the Hague Convention is not persuasive in this circumstance. Ethiopia was not a signatory to the Hague Convention when the Agreement was signed and is not a signatory today. Nothing has changed from when he agreed that the children can travel back to Ethiopia with their mother.
[9] The Father’s only real evidence and “the basis of his concern” is a hearsay statement, that was allegedly made by the children, about something their mother had said. The Father alleges that the children disclosed that the mother said she will not return the children to Ontario. The children are 12 and 14 years old. They are not little children. The children have expressed, in writing, excitement about travelling with their mother. They have expressed no concern that she will not return them in time for school this year.
[10] The Mother even offered to post security to ensure the return of the children, which the Father did not accept.
[11] The Mother also requested an order dispensing with the Father’s consent to renew the children’s passport. To date, he has failed to sign the passport application. He should not be permitted to sabotage the trip by failing to facilitate the renewal of the child’s passport.
[12] There is no reason to change the agreement between the parties. I am enforcing the terms of the Agreement and permitting the children to travel with their Mother until the commencement of school. The Mother may apply for the child’s passport without the need to obtain the Father’s consent.
[13] Finally, I asked the parties to make submissions with respect to the quantum of costs to be awarded to the successful party. Counsel for the Mother sought costs on a full indemnity basis in the sum of $10,000. Counsel for the Father argued that $10,000 was excessive for an uncomplicated motion argued in less than an hour. He suggested that a reasonable cost was between $3,000-$5,000. The Father’s bill of costs shows he incurred legal fees of $3,934.
[14] The Mother is entitled to her costs as the successful party. I have considered the factors under rule 24(12). I find the time spent to be somewhat excessive. The motion was not complicated. The facts and the law were straightforward. There was also some duplication in that the bill includes mentorship time with more senior counsel. I find that costs of $5,000 are reasonable in the circumstances.
[15] Order to go as follows:
The Applicant Mother may travel with the children: Ayah Cassidy, born October 3, 2007, and Yasmin Cassidy, born December 28, 2009, to Ethiopia of any country of her choice, returning to Ontario no later than September 3, 2022.
The Respondent shall provide the Applicant with the children’s passports within 24 hours of release of this endorsement.
On this one occasion, the Applicant may apply for a new passport for the children if their passports have expired, dispensing with the need to obtain the Respondent’s consent.
The Respondent shall pay the Mother costs of this motion in the sum of $5,000 payable forthwith.
Date: August 4, 2022