Court File and Parties

COURT FILE NO.: FS-16-413782 DATE: 20231011 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Zubair Ladak, Applicant/Moving Party AND: Stephanie Kirsti McWilliams, Respondent/Responding Party

BEFORE: L. Brownstone J.

COUNSEL: Stephen P. Kirby for Applicant, Moving Party Toni Wharton and Jacob Stall for Respondent/Responding Party

HEARD: October 5, 2023

Endorsement

Introduction

[1] The parties were married in 2012 and separated in 2015. They have one daughter, who was born in 2015. In 2017 they reached agreement on the terms of their separation, which were incorporated into a consent order of Kiteley J dated March 20, 2018.

[2] The order contains specific provisions about the child's religious upbringing. The applicant father is a Shia Ismaili Muslim and the order requires the parties to continue to foster the child’s Shia Ismaili identity. In brief, the order provides that the child shall attend regular prayer services, educational classes and major religious celebrations with the father, who was to make reasonable efforts to ensure that attendance falls during his time with the child. The respondent mother was required to make reasonable efforts to accommodate some events that may fall during her parenting time.

[3] The father has enrolled the daughter in weekly religious education classes that take place every Saturday from 9:00 – 11:30 am. The parties have a 2-2-5-5 parenting arrangement, so that the mother has parenting time every other Saturday. The parties disagree as to whether this type of arrangement for the daughter’s religious education was contemplated by the order. The father claims that the terms of the order are clear and that the mother is in breach of the order by not facilitating the child’s attendance every Saturday that school is in session. He seeks an order requiring the mother to comply with its terms by sending the child to her weekly religious classes. The mother argues that regular interference with her parenting time was in no way contemplated by the order or covered by its terms, that she is not in breach of the order, and that the father has not made reasonable efforts to ensure that the child's attendance falls during his time with the child, as he is required to do under the terms of the order.

[4] Regardless of whether I find that the mother is in breach of the order, both parties seek an interpretation of the relevant paragraphs of the order so that they may move forward with a plan in respect of their child's religious upbringing that is in compliance with the terms of that order.

[5] The issues the court must determine are:

a. Is the mother in breach of the order of Kiteley J. dated March 20, 2018? If so, should an order for costs against the mother be made under Rule 1(8) of the Family Law Rules?

b. If she is not in breach, how should the order properly be interpreted in respect of the daughter’s religious education?

Background

[6] Under Rule 1(8), if a party fails to obey a court order, the Court may make a number of orders. In this case, the father seeks a finding that the mother is in breach and an order for costs under Rule 1(8).

[7] The relevant terms of the consent order of Kiteley J. dated March 20, 2018 are as follows:

2.3 The parties shall continue to foster the child's Shia Ismaili identity, and the Applicant shall be responsible for her religious training, as further particularized below. The child may continue to be exposed to other religious and cultural practices, including Christianity.

2.4 The child shall continue to be raised as Shia Ismaili Muslim:

a) The child shall attend regular prayer services, educational classes and major religious celebrations with Zubair;

(b) The Applicant shall make reasonable efforts to ensure the child's attendance at the events set out in subsection 2.4(a), above, falls during her time with the Applicant; however, both parties acknowledge and agree that some events may fall on the Respondent's parenting time and where that arises, the parties shall make reasonable efforts to accommodate the child's attendance at and participation in such events. The Applicant shall make the same reasonable efforts to accommodate other religious and cultural events the child shall attend with the Respondent. Where the child's attendance at religious or cultural events results in missed parenting time, make-up parenting time shall be arranged between the parties.

[8] The dispute about the interpretation of the provisions began in July 2018, just a few months after the order was made. At that time, their daughter was three years old, and the father registered her in religious school at Bait-Ul Ilm. Classes at BUI are held on Saturdays from 9:00 to 11:30, from mid-September to mid-June, with some breaks. The mother, who is of Finnish heritage, disagreed with the father’s plan, and expressed her view in part as follows:

If you decide this is the right thing to do from your end and you wish to place her in the class two Saturdays a month when it is your parenting time, I will respect that decision. At the age of 3 I personally think 2.5 hours is a lot, for two reasons. One, simply because of her age and attention span and two because she already spends 5 days per week at daycare. I suggest you delay for at least another year or two. …

I cannot say I agree with your plan to send her at age 3 and certainly not every week of the month. My preference if you decide to proceed would be that [M} only attend once per month and that at the 6 month mark we rotate the one Saturday class to Finnish class and this way she is at least getting a balance between the two cultures. I will also have to get more details around the Finnish school as it sounds like the Saturday camps may only be 7 times per year and I am not sure of the duration from looking at the website. We could also alternate months Ismaili school/Finnish school. Of course, we also have to consider other activities. She did seem to enjoy dance and I think would benefit from doing one or two more sessions this year. At least these are short and with an early class it still leaves time to enjoy the day. However, if she is going to religious classes or otherwise then her weekend also starts to become rather structured and it hardly seems fair to her. As she gets older I am of course happy to revisit the situation.

[9] In September 2018, the mother advised that giving up her regular Saturday morning parenting time is not a “reasonable effort to accommodate”, and she was not prepared to do so.

Position of the parties

[10] The father argues that the terms of Kiteley J.'s order are clear. Their daughter is to be raised as Shia Ismaili Muslim and the parties are to make the accommodations necessary to facilitate her regular attendance at religious education classes. The mother has refused to do so and is in breach of the order.

[11] The father claims that the mother has not placed the priority upon the child’s religious heritage that is required under the order. Instead, she equates the importance of the child’s other secular activities with those relating to her religious upbringing, which clearly does not comport with either the words or the intention of the order.

[12] The father attests that his understanding is that attending these religious educational classes beginning at the age of 3 is a mandatory part of their religious upbringing. He argues that parents are presumed to know their child’s best interests, and these are reflected in the terms of the order requiring regular attendance at religious education and events: Gordon v Goertz, [1996] 2 S.C.R. 27.

[13] The mother emphasizes the wording of the consent order that acknowledges that some events may fall on her parenting time, and that where that occurs, the parties will make reasonable efforts to accommodate their daughter’s attendance. She states it was never their intention that religious school attendance would be required every Saturday during her parenting time. Further, she takes the position that she has accommodated requests for special religious observances and occasions that fall on her parenting time, and provides examples. The mother also submits that, because the father himself is inconsistent in his religious belief, consistency was never contemplated by the parties and is not a reasonable interpretation of the order. The father objects to her questioning his religious beliefs and practices, and cautions against the court becoming involved in a weighing of religious beliefs or “adjudicating a “war of religion””. The parties’ religious beliefs are not to be put on trial: Young v Young, [1993] 4 SCR 3.

Reasonable accommodation

[14] Each party claims the other has not provided reasonable accommodation on this issue, as each is required to do under the terms of the order.

[15] The father argues that the mother has made very little accommodation to facilitate their daughter’s attendance at religious classes and events. He argues that the mother’s actions demonstrate an intentional choice not to facilitate their daughter’s religious upbringing, contrary to the terms of the order. Rather, she chooses downtime and other secular activities over the daughter’s religious upbringing. He notes that the examples of accommodation provided in her affidavit are few and end in December of 2021. He asks the court to infer that had there been more accommodations, the mother would have listed them. The mother points out these were listed were specifically provided as examples, and no such inference can be made.

[16] The mother argues that the father has not sufficiently explored other options, such as the availability of virtual classes, private instruction, or shorter classes on a weeknight. She provides a pamphlet from BUI, which indicates there are online options, and states that the father has never approached her about a Thursday and whether it would work with their daughter’s schedule. The father’s evidence on this is as follows: “Although I have inquired, alternative days/times are not available to ensure that all classes fall during my parenting time; while there is a Thursday evening class option in some regions, I am not permitted to mix Thursday and Saturday sessions”.

[17] The mother also argues that the order requires the father to make the same reasonable efforts to accommodate other religious and cultural events. She has enrolled their daughter in monthly Finnish classes on Saturday mornings which the daughter would have to miss if she were to attend BUI every week.

[18] The mother relies on a number of cases for the proposition that a child’s relationship with a parent is more important than religious practices and beliefs: Heath v Zdep, (2000), 101 ACWS (3d) 544 at para 31; J.M.M. v. C.J.R., 2019 BCPC 199; L.J.R. v J.M.M, 2022 BCSC 1911; K. (R.B) v. R. (N.J.), 1996 CarswellNS 541, 68 A.C.W.S. (3d) 113.

[19] I agree with the father that these cases do not assist in determining the issue before me. None of them arose in the context of interpreting an order under which the parties had agreed on the child’s religious upbringing to the degree specified in the order in this case. The task here is for the court to interpret the existing order in the context of these parties’ intentions and obligations as evidenced in that order.

Analysis

[20] Unfortunately, not all of the provisions of the consent order are clear, particularly when they are read together. The following elements are required to co-exist:

The parties shall continue to foster the child's Shia Ismaili identity, and she shall be raised be raised as Shia Ismaili Muslim;

She may be exposed to other religious and cultural practices;

The father is responsible for her religious training;

The child shall attend regular prayer services, educational classes and major religious celebrations with the father;

The Father is required to make reasonable efforts to ensure the child's attendance at the prayer services, educational classes and major religious celebrations falls during his parenting time;

The parties acknowledged that some of those events may fall on the mother's parenting time, for which reasonable efforts to accommodate the child's attendance would be made

Those same reasonable efforts to accommodate would be made for other religious and cultural events that the child would attend with the mother.

[21] The father focuses on the paragraph requiring regular attendance. The mother focuses on the fact that it was foreseen only that only some events might fall during her parenting time. As set out above, both parties argue that the other’s accommodation efforts have been unreasonable.

[22] I find that under the terms of the order, the mother has an obligation to facilitate the father’s efforts to raise their daughter in the Shia Ismaili faith. I find that its specific inclusion in the order is an indication that this was a matter of importance.

[23] However, I find that the order as written did not contemplate that the mother would be giving up each Saturday morning of her parenting time for religious education. Rather, having regard to the wording chosen in respect of each paragraph, I find that the order contemplates that there may be some occasions when the religious activities occur during the mother’s parenting time, and the mother is to reasonably accommodate them. That portion of the order does not contemplate that the mother will give up each Saturday morning of her parenting time, frustrating her ability to have any complete free weekend with her daughter while BUI is in session. Most of the religious activities were intended to take place with the father, during his parenting time. I do not find the order contemplated weekly weekend education during the mother’s parenting time. The mother’s reasonable accommodation does not require her to give up this weekly Saturday parenting time.

[24] I also find that the record does not demonstrate that the father has made reasonable efforts to determine whether the daughter’s attendance at the educational classes could occur during his parenting time, which he is required to do under the order. There is no indication of whether alternatives such as Thursday classes, online classes, or private arrangements were sought to be made. It may be that the weighing of the mother’s reasonable accommodation would be different if any of those arrangements were sought to be made.

[25] Having found that the weekly Saturday morning classes are not captured by the order, I find that the mother is not in breach of the order.

[26] The parties requested that I provide some assistance to them in interpreting the order going forward. While I have found that the mother is not in breach of the order, the evidence does portray a situation in which she appears to be a less-than-enthusiastic supporter of the child’s religious upbringing. I find that the order contemplates the following:

a. The daughter’s religious upbringing in the Shia Ismaili faith is to be supported by both parents;

b. The father must make reasonable efforts to ensure the religious education takes place during his parenting time. To the degree that some of the education must occur during the mother’s parenting time, the mother shall accommodate this. For example, this may occur when a particular educational class is calendar-sensitive, such that there is importance to the education taking place on a day or days that happen to fall during her parenting time; and

c. Given that the parties agreed that their child would be raised in the Shia Ismaili faith, if the father finds options that are less intrusive to the mother’s parenting time, the mother is to accommodate these classes.

[27] The contentious issue between the parties on this motion is the religious education. There was no evidence before me that attendance at specific religious observances or prayer services were causing difficulties between the parties. Nothing I have said above reduces or changes in any way the mother’s obligation to reasonably accommodate the daughter’s attendance at such observances or services as may, from time to time, fall during her parenting time.

Disposition

[28] The father’s motion to find the mother in breach of the order of Kiteley J. is dismissed.

[29] The guidance above is provided to assist the parties in interpreting the order going forward.

[30] Given the ambiguity in the provisions, neither party’s argument was unreasonable. The parties are encouraged to agree on costs. If they are unable to agree, the applicant may send submissions of no more than three pages, double spaced, with attached bill of costs and any offers to settle within seven days. The respondent may respond within seven days of receiving the applicant’s submissions. There shall be no reply submissions without leave. Submissions may be sent to my judicial assistant at linda.bunoza@ontario.ca.

L. Brownstone J. Date: October 11, 2023