COURT FILE NO.: FS-19-95224-00
DATE: 2022-12-13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Talha Ayub, Applicant
AND:
Tazeen Al-Haq, Respondent
BEFORE: André J.
COUNSEL: S. Suri, for the Applicant
O. Chaudry, for the Respondent
HEARD: October 12, 2022
ENDORSEMENT
ANDRé J.
[1] The Applicant, Talha Ayub, brings an application for an order granting him increased parenting time to Z.A., born on May 10, 2018. The Respondent, Tazeen Al-Haq, is not opposed to Mr. Ayub having increased parenting time with Z.A. but not to the extent proposed by Mr. Ayub.
BACKGROUND FACTS
[2] The parties were married on July 23, 2017. They have one child, Z.A., who was born on May 10, 2018. Ms. Al-Haq has been the primary caregiver to Z.A. since birth.
[3] The parties separated on January 1, 2019, with no reasonable prospect of reconciliation. On that date, the Respondent Ms. Al-Haq left the matrimonial home following a dispute. They agreed that they would implement a shared parenting arrangement.
[4] On February 5, 2019, Ms. Al-Haq contacted the Peel Police and reported that she feared that Mr. Ayub would apprehend Z.A. and that Mr. Ayub was inebriated.
[5] On or about February 22, 2019, Mr. Ayub received notice from Peel Children’s Aid Society (“CAS”) requesting a meeting which was scheduled for March 20, 2019.
[6] On September 18, 2019, Peel CAS advised that they did not believe ongoing investigation to be necessary.
COURT ORDERS
[7] On September 19, 2019, Justice Emery ordered, on consent and without prejudice, that Mr. Ayub could see Z.A. from 1:00 p.m. to 3:00 p.m. every Saturday.
[8] On June 16, 2021, Justice Price ordered, on consent, that a long motion to extend parenting time would take place on January 19, 2022.
[9] On November 5, 2021, Ms. Al-Haq agreed to increase parenting time on consent and without prejudice.
POSITION OF THE PARTIES
THE APPLICANT’S POSITION
[10] Mr. Ayub seeks increased parenting time based on the following schedule:
a) Every Tuesday starting after school, or at 5:00 p.m., until Wednesday at 5:00 p.m.;
b) Every other Tuesday starting after school, or at 5:00 p.m., until Thursday at 5:00 p.m.; and
c) Every Friday starting at 5:00 p.m. until Saturday at 5:00 p.m;
d) Mr. Ayub shall be responsible for picking up Z.A. from school and dropping him off to Ms. Al-Haq’s home at the end of his parenting time. Ms. Al-Haq shall be responsible for picking up Z.A. from school and dropping him off at Mr. Ayub’s home at the end of her parenting time.
THE RESPONDENT’S POSITION
[11] Ms. Al-Haq proposed, in her affidavit, that Mr. Ayub shall have parenting time on alternate weekends on Fridays after school to Sunday at 6:00 p.m. and on Tuesdays after school to 7:00 p.m.
GOVERNING PRINCIPLES
[12] Section 16(1) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) (“the Act”) provides that the court shall consider only the best interest of the child of the marriage in making a parenting order or a contact order.
[13] Subsections (2) and (3) of section 16 sets out the primary consideration in determining a parenting order and the factors to be considered in determining a child’s best interests:
Primary consideration
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
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.
[14] Section 16(5) of the Act states that in determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of the parenting time, decision-making responsibility or contact with the child under a contact order.
[15] Section 16(6) of the Act states that 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: see also Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27; Berry v. Berry, 2011 ONCA 705.
[16] The right of a child to visit with a non-custodial parent and to form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances: see D.G. v. A-G.-D., 2019 ONCJ 43 at paras. 127-131.
ANALYSIS
[17] The motion raises the following issue: do Z.A.’s best interests require that Mr. Ayub’s parenting time be increased?
[18] In answering this question, I note the following:
i) Z.A.’s best interests require him to have maximum contact with both parents;
ii) There is no evidence that Mr. Ayub is unable to meet Z.A.’s myriad needs or is incapable of caring for him;
iii) The Peel CAS has investigated allegations made by Ms. Al-Haq about Mr. Ayub’s parenting and has not found anything concerning about Mr. Ayub’s parenting skills;
iv) Z.A. is at an age where as much contact as possible with both parents is crucial for his emotional stability;
v) The parties reside ten minutes from each other and in the same school catchment, thereby making the exercise of parenting time easier;
vi) During questioning, Ms. Al-Haq stated that she was “sure” that Mr. Ayub could provide Z.A. with stability; she also gave a similar response when asked if she believed he was capable of caring for Z.A. while she went to work;
vii) Z.A. appears to have close ties to both parents. He also has a close relationship with Mr. Ayub’s parents and Mr. Ayub’s sister (with whom he resides);
viii) Ms. Al-Haq’s allegations that Mr. Ayub abuses alcohol is unsubstantiated. Mr. Ayub voluntarily participated in tests to prove that he is not an alcoholic. To that end, he provided Ms. Al-Haq with 400 days of tests results, thereby disproving her allegations;
ix) Both parents have the same religion and cultural background. Both can, therefore, contribute to maintaining and preserving Z.A.’s cultural and religious heritage;
x) Ms. Al-Haq has demonstrated that in the past, she has had difficulty communicating and cooperating with Mr. Ayub on matters affecting Z.A.. This is evidenced by the following:
a) Between January and May 2021, Ms. Al-Haq failed to respond to approximately forty messages concerning Z.A. sent to her by Mr. Ayub;
b) Ms. Al-Haq took Z.A.to Montreal without mentioning it to Mr. Ayub;
c) Ms. Al-Haq enrolled Z.A. in some sporting activities without advising Mr. Ayub;
d) Ms. Al-Haq does not consult Mr. Ayub on matters concerning Z.A.’s health.
[19] Ms. Al-Haq’s counsel relies on a few cases to submit that mid-week overnight access is disruptive for children and therefore is inappropriate in this case: see Rideout v. Rideout, 2008 31813 (ON SC), at para. 18, and Alvarez v. Vargas, 2006 ONCJ 474, at paras. 8-9. In Panesar v. Panesar, 2003 74304 (ON CJ), a case involving a six-year-old child, the court noted at para. 55 that:
It is not, however, always in a child’s best interests to keep on increasing access, no matter how beneficial an access parent is. At a certain point in some cases, especially with young children in school, the stability of a principal residence is required.
See also Jamil v. Iqbal, 2014 ONSC 4650 at para. 22, where the children involved were 2 and 5 years of age.
[20] While mid-week overnight parenting time may indeed be disruptive for a young child, whether it has that effect in a particular case depends on the background facts. I do not believe that mid-week parenting time would be disruptive here for a few reasons. First, the parents consented on November 5, 2021, to increase parenting time on a without prejudice basis to a schedule which included parenting time every Tuesday at 5:00 p.m. until Wednesday at 5:00 p.m. That schedule has therefore been in place for over a year. As a result, any modest increase in mid-week overnight access will either be minimally disruptive or not at all. Second, the parents live within ten minutes of each other, thereby minimizing any problems with transportation. Third, both parties, based on the evidence, appear to have flexible work schedules which would minimize conflict over parenting time.
[21] Ms. Al-Haq’s position regarding parenting time would reduce the parenting schedule which the parties agreed to on November 5, 2021. I see no reason why this should occur. In my view, such a reduction would be inimical to Z.A.’s best interests in that it would likely erode his relationship with his father. On the other hand, the schedule proposed by Mr. Ayub, which would markedly increase the current schedule, has the potential of disrupting Z.A.’s stability. In my view, a parenting schedule that would modestly increase the overnight parenting time of Mr. Ayub would be in Z.A.’s best interests.
[22] Accordingly, I order that:
a) The Applicant, Talha Ayub, shall have parenting time with Z.A. Ayub, born on May 10, 2018, as follows:
a) Every Tuesday starting after school, or at 5:00 p.m., until Wednesday at 5:00 p.m.;
b) Every other Friday starting after school, or at 5:00 p.m., until Sunday at 5:00 p.m.
[23] Mr. Ayub shall be responsible for picking up Z.A. from school and dropping him to Ms. Al-Haq’s home at the end of his parenting time. Ms. Al-Haq, the Respondent, shall be responsible for picking up Z.A. from school and dropping him off at Mr. Ayub’s home at the end of her parenting time.
COSTS
[24] Ms. Al-Haq seeks costs in the amount of $18,136.50 and $14,735.91 on a substantial and partial indemnity basis respectively. Mr. Suri, on Mr. Ayub’s behalf, is seeking costs within the same range as Ms. Al-Haq. In deciding what quantum of costs would be fair and reasonable in this matter, I consider the following factors:
a) Mr. Ayub was more successful that Ms. Al-Haq in the motion;
b) The matter was set for a long motion and required a fair amount of preparation time, research, and facta preparation;
c) Ms. Al-Haq turned down offers to settle which included an increase in overnight parenting time;
d) Despite requiring a fair amount of preparation time, the matter was not unduly complex.
[25] In my view, the amount of costs that are fair and reasonable in this matter is $5,000.00.
[26] I therefore order that Ms. Al-Haq pay costs to Mr. Ayub, fixed in the amount of $5,000 inclusive, within ninety (90) days of today’s date.
André J.
Date: December 13, 2022
COURT FILE NO.: FS-19-95224-00
DATE: 2022-12-13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Talha Ayub
- and -
Tazeen Al-Haq
ENDORSEMENT
André J.
Released: December 13, 2022