COURT FILE NO.: FC-21-124

DATE: 20230209

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Bousetta Allouche

Applicant

– and –

Fazia Lahdiri

Respondent

Ana Kraljevic

Self-Represented

HEARD: October 3-7,12,13, 2022

The honourable justice m. j. donohue

REASONS FOR JUDGMENT

ISSUES

[1] This trial concluded on October 13, 2022. The parties sought to prepare written submissions on all the issues. Mr. Allouche filed his submissions on October 24, 2022. Ms. Lahdiri, as a self-represented party requested additional time to respond and filed her submissions on November 21, 2022. Mr. Allouche filed his reply submissions on December 5, 2022.

[2] The parties required the court to decide the following issues:

(a) Where should their seven-year-old daughter, “M” reside and attend school?

(b) What parenting schedule is in “M’s” best interests? What holiday schedule should be arranged?

(d) What child support order is appropriate?

(e) What s. 7 order is appropriate?

(f) Is the applicant, Mr. Allouche, entitled to spousal support and if so for how much and for how long?

OVERVIEW

[3] The parties both originate from Algeria with their first language being French.

[4] Mr. Allouche immigrated to North America in 1972. He married and later divorced in 2006. He has a son and a daughter from that first marriage who are now adults.

[5] In 2011 he met Ms. Lahdiri online. They later met in person in Algeria. They married in 2013 with Ms. Lahdiri immigrating to Canada.

[6] Their daughter “M” was born May 23, 2015.

[7] In the fall of 2019 Ms. Lahdiri had completed her teaching qualifications to teach in the French school system. She began working as a supply teacher in Welland.

[8] Ms. Lahdiri was not happy in the marriage and was contemplating leaving Mr. Allouche as early as 2019.

[9] In the summer of 2020 Ms. Lahdiri applied for jobs in the Niagara area and in Hamilton. She was successful in obtaining a full-time job in Hamilton starting September 2020. Ms. Lahdiri did not have a driver’s licence and so this required Mr. Allouche to drive her to and from work, or for her to pay a colleague to share the commute.

[10] The child had surgery in January 2021 at McMaster Hospital. Ms. Lahdiri chose then to separate from Mr. Allouche. She took the child from the hospital to a shelter. At the time she told Mr. Allouche that he would never see his daughter again.

[11] Ms. Lahdiri obtained an ex parte temporary order on March 24, 2021 awarding her sole decision-making and primary residence and an order that Mr. Allouche would not have any parenting time. She also obtained a restraining order against him.

[12] On the return of the motion on April 27, 2021 the restraining order was terminated. A new temporary order was made for shared decision-making and shared parenting time. The respondent mother’s time was from Monday at 8:30 a.m. to Friday at 4:00 p.m. The applicant father’s time was from Friday at 4:00 p.m. until Monday at 8:30 a.m.

[13] Until separation, the child’s school had always been L’Heritage in St. Catharines. In March 2021, without notice to Mr. Allouche, Ms. Lahdiri enrolled the child virtually in the Hamilton school where she worked, Pavillon de la Jeunesse. She obtained a residence near the school which allowed her to walk to work.

[14] In September 2021, the court made a temporary order for the child to be returned to L’Heritage in St. Catharines. Ms. Lahdiri obtained temporary accommodation in St. Catharines so that the two parents could continue to share parenting time, now on a week-about basis. Ms. Lahdiri had to pay taxis to get her to and from work in Hamilton on her parenting weeks.

[15] A year later in September 2022 Ms. Lahdiri no longer had accommodation in St. Catharines. The schedule for her parenting time was Wednesday evenings from 5:00 to 7:00 p.m. in Hamilton; on the first weekend of the month from after school on Fridays until Saturdays at 8:00 p.m.; on the second, third and fourth weekends of the month from Fridays after school until Sundays at 7:00 p.m. This temporary schedule was arranged pending this trial decision.

RESIDENCE AND SCHOOL

[16] The most contentious issue in this trial was where the child’s primary residence was to be and where she would attend school.

[17] Mr. Allouche sought an order for the status quo, to continue with the child residing with him in St. Catharines, and attending L’Heritage school. The child had attended this school for junior and senior kindergarten as well as grade one. She is currently a grade two student there pursuant to the temporary court order.

[18] The child has suffered a number of disruptions in L’Heritage school attendance due to Covid-19 lockdowns and her mother’s switching her in the spring of 2021 to Pavillon school. Her attendance at Pavillon was virtual such that most of her friends are other seven-years-olds at L’Heritage.

[19] Ms. Lahdiri seeks to change the child’s school to Pavillon where she teaches. As noted above, the school is a five-minute walk from the home she rents in Hamilton.

[20] This child, now seven and a half, has a close and loving relationship with both her parents. She has largely had equal time with both parents. Her expressed wish is for that to continue. Since the fall of 2022 the time with her mother has necessarily reduced as her mother did not have accommodation and assistance in Niagara to get the child to and from school on her parenting weeks. There was also the expense of commuting to Hamilton, which in the previous year cost her $6,000.

[21] There are a number of considerations for the court when making a decision on the child’s residence and school that would serve the child’s best interests.

Mr. Allouche’s Health

[22] The child’s father is 20 years older than the child’s mother. He is now 70 years of age. He suffers from cardiovascular disease, diabetes and high blood pressure.

[23] Mr. Allouche’s evidence was that these medical conditions prevented him from being able to work, although he does some part-time translations, online, from home.

[24] Furthermore, he suffers from glaucoma which makes it difficult for him to drive at night.

[25] This court’s order must consider a final order that will serve the child’s interests for the next 11 years.

Rental Accommodations

[26] Mr. Allouche rents a two-bedroom apartment in St. Catharines. Ms. Lahdiri has rented an apartment in a house with a yard in Hamilton.

[27] Mr. Allouche had submitted that Ms. Lahdiri could move closer to St. Catharines, perhaps to Stoney Creek. Quite reasonably, Mr. Lahdiri explained that this would not be workable as she does not drive.

[28] The court was not given any evidence that Mr. Allouche was tied to St. Catharines for any reason. There is no evidence that he had any interests or associates apart from his young daughter. As noted, the part-time work that he does is online, at home.

Ms. Lahdiri Does Not Drive

[29] Ms. Lahdiri does not have a driver’s licence.

[30] This may change in the years ahead but it is a very real concern at present.

[31] When trying to teach her to drive, Mr. Allouche was said to have criticized her saying, “You will be in an accident,” and “You will get a ticket”.

[32] Ms. Lahdiri has failed her driving test three times.

[33] At the age of 49, embarking on learning to drive and being safe at it on the Queen Elizabeth highway is a significant challenge.

Ms. Lahdiri Does Not Own a Car

[34] Ms. Lahdiri’s financial situation shows her to be in a debt-ridden situation due to this litigation, to establishing her home in Hamilton near her work, and the cost of taxis between St. Catharines and Hamilton so that she could exercise her parenting time.

[35] Her situation is worsened by the costs awards against her for her litigation behaviour which she brought upon herself.

[36] Nonetheless, it remains a practical reality that purchasing a car in the near future may not be feasible.

A Move Was Contemplated

[37] In the fall of 2020, during the marriage, Ms. Lahdiri took this full-time position in Hamilton with the knowledge and support of Mr. Allouche.

[38] Mr. Allouche had been setting aside money so the family could purchase a house. It is clear that a move was contemplated.

[39] It is reasonable to infer that had a move occurred, the child’s school would be changing accordingly.

This Family Depends on Ms. Lahdiri’s Job

[40] As noted, Mr. Allouche is in his senior years, has a number of health challenges, and earns less than $25,000 per annum, largely from pensions. Furthermore, he has made a spousal support claim against Ms. Lahdiri.

[41] Ms. Lahdiri’s income from this full-time position is expected to be more than $60,000 and she anticipates that it will increase over time.

[42] Their combined family income now has to support two households rather than one.

[43] Ms. Lahdiri’s evidence was that she was unable (and unwilling) to get a full-time position in Niagara.

[44] The court was given some evidence by Ms. St. Pierre, director of human resources of the French school board, Viamonde. This is the board in which Ms. Lahdiri is qualified to work. Neither party summoned Ms. St. Pierre to testify. The best evidence the court had was Ms. St. Pierre’s letter of August 26, 2021.

[45] It is significant that Ms. St. Pierre stated that in the Niagara region the enrollment for French students was declining and the area had several surplus teachers.

[46] She also stated that any vacancies created through resignations, retirement or increased school staffing will be filled by surplus teachers based on their preference, qualifications and seniority.

[47] Ms. Lahdiri does not have much seniority. She only started her work as a substitute teacher in the fall of 2019 and she was away in the spring of 2020. She has only worked full-time since the fall of 2020. It is reasonable to conclude that she would have little chance of success in a competitive job market in Niagara where jobs are few and there are surplus teachers.

[48] The evidence is clear that Ms. Lahdiri made no effort to seek work in Niagara since 2021 and that she prefers to stay in Hamilton. This is despite direction from the court that she makes such efforts.

[49] Nonetheless, on the evidence before me, I am satisfied that it is unlikely she would succeed in garnering a comparable position in Niagara.

Adaptability of this Child

[50] The Office of the Children’s Lawyer (“OCL”) did an assessment in this proceeding. The clinician was Ms. Young. There is no dispute regarding her description of the child, that she is a “bright, intuitive and caring child. She is progressing very well in school, academically, socially and behaviourally, and presents no concerns.”

[51] This child does not have any special needs or supports. Ms. Young opined that if the child changed schools she would adapt well and would not struggle with the transition. She did recognize that a transition mid-year might be a bit of a struggle.

[52] One consideration is, however, that to the extent the child does feel some awkwardness at the new school, her mother is present and working at the same school.

Connections with St. Catharines

[53] The child has not had any regular extra-curricular activities in either St. Catharines or Hamilton, in part due to the conflict between the parents’ parenting schedules and in part due to financial constraints.

[54] The evidence does show that the child has a number of playmates in St. Catharines whom she would want to see. If her school was changed, this may be arranged by the parenting schedule discussed below.

Conclusion

[55] The status quo, largely maintained since February 2021 was the child attending school in St. Catharines. Her residence has been less stable. She has spent time with her father at the St. Catharines apartment, time with her mother at her step-sister’s home in St. Catharines, time with her mother at a friend’s home in Niagara Falls, and time with her mother at the Hamilton apartment.

[56] On considering all the evidence, the child’s best interests will be served by having her primary residence ordered with her mother in Hamilton and changing her school to Pavillon de la Jeunesse.

[57] In summary, the reasons for this conclusion are:

• Pavillon is a five-minute walk from her mother’s Hamilton residence;

• Pavillon is where her mother works full-time;

• The father is now 70 years of age and has a number of health problems;

• The father can more easily move locations than the mother;

• The mother is not licenced nor does she have a vehicle, and has not much driving experience;

• The mother cannot afford commuting costs to Hamilton if she moves her residence to Niagara;

• A move had been contemplated during the marriage when the mother accepted the Hamilton job with the father’s consent and knowledge;

• The family financially depends on the mother maintaining this full-time position;

• It is unlikely the mother would succeed in garnering a comparable job position in the Niagara area;

• The child is still very young, just starting her education; she does not have special needs or supports and should adapt well to a school change;

• The child’s wishes are to spend equal time with each parent;

• The parenting schedule may be arranged to support the child’s relationship with her father and playmates in St. Catharines.

[58] Accordingly, the final order is for the child to be enrolled at and attend Pavillon de la Jeunesse following the 2023 March break.

[59] The child’s primary residence is to be with Ms. Lahdiri in Hamilton.

WHAT PARENTING SCHEDULE IS IN THE CHILD’S BEST INTEREST

Overview

[60] Mr. Allouche seeks an order for equal, shared parenting time, week-about, if Ms. Lahdiri moves to the Niagara area. If not, he proposes that Ms. Lahdiri have one evening a week plus alternating weekends, with the Sunday exchange to occur at the Fairview Mall in St. Catharines. This former proposal results in seven overnights in every 14. The latter proposal results in two overnights in every 14.

[61] Ms. Lahdiri seeks an order that Mr. Allouche have Tuesday overnights and alternating weekends from after school on Fridays to Monday mornings before school, with exchanges at the school or at Limeridge Mall in Hamilton. This proposal amounts to five overnights in every 14.

[62] The parties in their positions recognise that it is in the child’s best interests to spend considerable time with both parents. This is consistent with s. 16(6) of the Divorce Act. This is also consistent with the child’s wishes for it to be shared, and consistent for most of the time that has passed since separation on prior temporary orders.

LAW ON PARENTING ORDERS

[63] Section 16 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended, directs the court on parenting orders as follows:

(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(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.

[64] Parenting orders pursuant to s. 16 of the Divorce Act are made considering only the best interests of the child, and in each case consider the following factors under s. 16(3):

(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.

[65] Where family violence is a consideration, the court is directed by s. 16(4) as follows:

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

The OCL’s Report

[66] Ms. Lahdiri’s request to reduce Mr. Allouche’s parenting time from seven days to five days is because she relies on the recommendations of Ms. Young of the OCL.

[67] Ms. Young’s recommendation to reduce the parenting time was based on Ms. Lahdiri’s reports that:

• Mr. Allouche caused verbal, emotional, financial and physical abuse during the marriage;

• Mr. Allouche failed to provide medical care and presented a risk of harm to the child;

• Mr. Allouche influenced and coached the child.

[68] The court had the benefit of a great deal more evidence than was available to Ms. Young and the benefit of six trial days of testimony. Had the OCL had this evidence, I am satisfied that it would have tempered her approach to the parenting schedule

The Description of the Marriage

[69] On an ex parte motion in March 2021, just after separation, the court stated that Ms. Lahdiri’s allegations against Mr. Allouche “paint a picture of long-standing significant domestic violence in many forms, including physical, psychological, and financial.”

[70] It is apparent throughout the evidence that both parties are forceful, aggressive personalities and are melodramatic in their language. It is not surprising that there were arguments and criticisms leveled at each other.

[71] It was wise for them to separate and so shield their young child from this angry environment.

Allegation of Physical Violence

[72] It was only after separation that Ms. Lahdiri described that there had been physical violence in the marriage. She described a time in 2013 when she had been crying and Mr. Allouche slapped her face and sat on her.

[73] Ms. Lahdiri alluded to a time in 2020 when he tried to hit her with a porcelain doll. She said another time in an argument that he spat in her face. Mr. Allouche testified that this did not happen.

[74] The evidence of physical violence is contradicted by discussions with Family and Children’s Services (“FACS”) where she met privately with various workers from 2019 to 2021.

[75] As early as July 2019, Ms. Lahdiri denied physical violence and described their marriage in moderate terms.

[W]orker has met with Mom twice…

Mom is dissatisfied with the relationship and wants to leave—but she is OK now, and reports the relationship is OK at this time

She reports that Dad is appropriate with the child, and interacts well with the child

Child has intervened before when Dad is yelling at Mom and tell Dad to stop…

Mom reports that Dad wants her to be like a slave - complains that she doesn’t add enough salt to food, wants her to cook, clean, etc. all the time

Mom reports that Dad did tell her that he used physical violence in the past with previous relationship—nothing with Mom…

Mom reports that she can freely leave the home at anytime...

She probably will leave him but not really now…

Four year old—speaks three different languages

She presents as happy, reports positive interactions with Mom and Dad

When asked directly about things at home—she says things are “good”

Mom described the child as a happy child

Mom reports child is exposed minimally to argue

Update [October 2019]

Worker followed up with Mom who expressed that the home was stable

The relationship with Mom and Dad is polite….

[76] Other records of conversations with Ms. Lahdiri are:

[H]e is has threatened to tell her family that she is not a good wife…

He is verbally abusive to her

He is not physically abusive, he does not stop her from going out when she wants, she does not believe he looks at her phone or computer

He helps her with her studies

He tries to control himself, and does usually control himself when “M” is present; “M” has intervened in their arguments, e.g. “daddy stop” “mommy don’t cry”

He is very good with “M”

She’s told him she wants to leave and he says bye-bye....

[77] A worker followed up on September 25, 2019 when Ms. Lahdiri reported that things were going “really well.”

[78] A year later in October 2020 Ms. Lahdiri stated again that Mr. Allouche, “has never been physical with her.” She did, however, say he “tried to hit her with a porcelain doll.” She told him she would call police and it did not happen again.

[79] The records for FACS on January 5, 2021 again have Ms. Lahdiri denying any physical violence toward her.

[80] In late January 2021 when Ms. Lahdiri was at the hospital, when she had decided to separate from him, she began describing physical violence. She told the hospital staff that Mr. Allouche “will beat her” if he found out that she gave the child Tylenol.

[81] She proceeded to obtain an ex parte restraining order against him in March 2021 which was set aside by the Court in April 2021.

[82] There was no evidence of physical violence in the last two years.

[83] The conclusion is that the allegation of long-standing physical violence is baseless.

Allegation of Psychological Abuse

[84] Ms. Lahdiri described Mr. Allouche as verbally abusive and verbally aggressive toward her. He criticized and complained to her.

[85] I am satisfied that she too criticized and complained to him. She put into evidence a seven-page letter by Mr. Allouche where he detailed his complaints. It is obvious from the content of the letter that it was in response to her complaints of him. Mr. Allouche testified that Ms. Lahdiri had written him with her criticisms and this was his reply.

[86] The FACS records note in December 2020 that Ms. Lahdiri said there “is a lot of yelling in the home to the point that” the child “M” will beg them to stop yelling.

[87] Ms. Lahdiri told the court that Mr. Allouche was controlling and criticized her such that she felt she could not succeed in Canada.

[88] I contrast this with the evidence that Mr. Allouche was helping her learn to drive a car and had even purchased a second car with automatic transmission as she had difficulty with the manual transmission. He also helped her with all her studies so that she was qualified to teach in Ontario. He drove her to her teaching placements and to the Hamilton job. She was free to go out of the home when she wished and as noted below was free to spend as she wished.

[89] Ms. Lahdiri suggested that she was fearful to discuss separation with Mr. Allouche. The FACS records, however, note a number of times before February 1, 2021 that Ms. Lahdiri said she had discussed separation with Mr. Allouche.

[90] Her difficulty was that she depended on him to drive her to work and he would not agree to moving the child to Hamilton. This was specifically noted by the FACS worker in the fall of 2020. It appears that this issue was what she considered his “controlling” behaviour. From the court’s perspective it does not rise to abusive behaviour.

[91] It is correct that Mr. Allouche’s speaking voice is loud. The evidence of their communication, however, is that both parties were forceful and aggressive.

[92] A review of the records show that her description of a violent, abusive, controlling man was more a means for her to move to a shelter and obtain a temporary sole custody order than a reflection of reality.

Allegations of Financial Abuse

[93] The financial abuse Ms. Lahdiri alleged is also without foundation. She gave as an example to the OCL’s Ms. Young that Mr. Allouche would buy new clothing for himself but she was forced to buy clothing for herself from Value Village.

[94] The evidence, on the contrary, shows that they had a joint bank account and she had her own debit card and cheques in her name. Her name was on the apartment lease with Mr. Allouche. She had a Mastercard and made purchases from The Bay, Fairweather’s, Winners, and Sephora to buy things for herself and “M” for beauty, health, and clothes. Mr. Allouche paid all the bills.

[95] In cross-examination she admitted that she would ask his consent to purchase things on Amazon and he would agree. Similarly, Mr. Allouche asked her consent to buy things he wished for on Amazon.

[96] Her complaint was that he moved funds into an investment account that she could not access. Mr. Allouche testified that when the amounts were high in their chequing account he moved funds to a savings account to buy a house. They were arguing about whether to buy a house, but again this does not rise to the level of financial abuse.

Allegations of Failure to Provide Medical Care

[97] Ms. Lahdiri made much of the child’s illness which began January 14, 2021 saying that she had been begging Mr. Allouche to take the child to emergency over a six-day period and that he refused.

[98] In her Answer filed in April 2021 she stated, “The Respondent ended their relationship on February 1, 2021 after the applicant’s controlling and abusive behaviour nearly killed “M”. The applicant refused to take or allow the Respondent to take the crying in pain child to seek proper medical attention for one week. When the applicant finally allowed “M” to got to hospital in St. Catharines, “M” was rushed by ambulance to McMaster Children’s Hospital for emergency surgery.”

[99] On January 20, 2021 the child’s doctor’s office recommended taking the child to emergency, to which Mr. Allouche agreed. After two days of testing the child was transferred to McMaster for surgery for a perforated appendix.

[100] Ms. Lahdiri had been right to be concerned and get the child to hospital.

[101] Ms. Lahdiri, however, presented a picture to the hospital, to FACS, to Gillian’s Place (the shelter), to the courts, and to the OCL that the child had been in peril for six days and that the father had refused treatment.

[102] The evidence is to the contrary.

[103] The child became sick on Thursday, January 14, 2021. Mr. Allouche thought it was the flu and was treating her with herbal teas. On Sunday, January 17, 2021 Ms. Lahdiri wrote a text message to Mr. Allouche writing that he was putting the child’s “life in danger” by “refusing” to let her see a doctor.

[104] A less urgent message was sent the same day to her neighbour, “Shikha”, saying that the child could not come to play as she had a “stomachache” and that “She’ll come tomorrow if she feels better.” Clearly, the child was not so ill if Ms. Lahdiri was considering a playdate for the next day.

[105] In Ms. Lahdiri’s texts on January 17, 2021 she stated, “if it does not improve, I will take her myself.” But the mother did not take it upon herself to take the child to emergency any day that week.

[106] Ms. Lahdiri was in contact with FACS and a worker spoke with the child on the Monday morning of January 18, 2021. The child told her she was “feeling better today but that her tummy doesn’t feel good. She will be going to the doctors today and hopes to feel better.”

[107] It was Mr. Allouche who took the child to a walk-in clinic on January 18, 2021. Ms. Lahdiri did not attend, presumably as she was teaching online classes.

[108] The clinic records of the walk-in clinic doctor note that he examined the child. His notes were:

Abdo (abdomen) non distended

Soft tender RLQ (right lower quadrant)

No peritonitis

No CVA tenderness

[109] Accordingly, the doctor did not consider it life threatening and stated “cause is not entirely clear”.

[110] The doctor ordered a urine test for a possible UTI (urinary tract infection).

[111] This doctor who actually examined the child did not order the child to be taken immediately to emergency. Rather, he advised Mr. Allouche to watch the child and take her if the abdominal pain worsened, or if fever or vomiting developed, or she was unable to rehydrate.

[112] The doctor prescribed Amoxicillin in the interim for the possible UTI. It was Mr. Allouche’s evidence that the doctor advised holding off giving the antibiotic to this five-year-old pending the urine test results, and to watch for discolouration of the urine.

[113] Ms. Lahdiri insisted on filling the prescription and gave it to the child on her own.

[114] Neither party summoned the doctor to test this information. I am satisfied that both parents were attempting to act in a way that was best for their child.

[115] Two days later, on Wednesday January 20, 2021, Ms. Lahdiri called the child’s pediatrician and described the symptoms. The doctor recommended taking the child to emergency. Ms. Lahdiri handed the phone to Mr. Allouche who heard the recommendation. Mr. Allouche promptly agreed to go to emergency. Ms. Lahdiri asked him to delay until she had finished work before taking the child. Understandably, she wished to be part of the assessment but again it is contrary to the picture she painted of the child being in immediate distress.

[116] Mr. Allouche’s reasoning for avoiding the hospital in January 2021 was the seriousness of Covid-19. The court cannot but agree and recognize that at that time the hospitals were stressed and overburdened and not even safe places to be. Caution before attending emergency in such circumstances is not careless disregard of the child.

[117] Ms. Lahdiri’s dramatic narrative unfairly coloured everyone’s approach to Mr. Allouche’s care of the child. It resulted in the ex parte court decision where he was prevented from seeing his daughter for many weeks until the matter could be rectified by a further court order.

[118] The OCL’s Ms. Young was similarly presented with an unbalanced account which caused her to recommend limiting the father’s parenting time.

Other Allegations of Medical Harm

[119] Ms. Lahdiri also alleged that Mr. Allouche put acid on the child’s upper lip to remove a beauty mark from her face.

[120] Ms. Lahdiri repeatedly accused him of “mutilating” the child. Mr. Allouche explained that he used a lip balm on a blister on the child’s face.

[121] A medical report was provided to confirm that there was no “tampering” with the child’s upper lip.

[122] The concern is that Ms. Lahdiri makes these attacks on Mr. Allouche as a litigation strategy.

[123] Another example is on the day of an unfavourable court decision Ms. Lahdiri phoned FACS saying the father would return the child from exchanges with “burns or bruises” on her body.

[124] At trial, Ms. Lahdiri denied saying to FACS that the father bruised the child. When asked what burns she was speaking of, she explained that on one occasion the child was returned to her with a sunburn on the child’s shoulder.

[125] Such overdramatic reporting causes the court to question Ms. Lahdiri’s evidence on many points.

Allegations of Father’s Coaching the Child

[126] The OCL’s Ms. Young concluded that Mr. Allouche was improperly influencing the child.

[127] One example was an incident in the fall of 2021 involving a dog. While in the father’s care a friend was watching the child while Mr. Allouche was in virtual court. Apparently, the child’s arm was marked by the friend’s dog. Mr. Allouche applied aloe vera to the arm. Ms. Lahdiri was very concerned about the child’s arm. Some days later the scratches became infected and required antibiotics. The doctor noted there were no puncture marks. FACS investigated and determined that Mr. Allouche told the child to say it was not from a dog bite.

[128] This is a concern for the court that Mr. Allouche would counsel the child in this manner to say that the marks were not from a dog when they were. Although inappropriate, it may well be caused by Ms. Lahdiri’s continued attacks on him as medically neglecting the child.

[129] The other example Ms. Young cited of the father influencing the child is the child saying that her father does not scream, he just “talks loud”. Ms. Young considered the father was having the child support his defence.

[130] Well before separation, however, the FACS notes show that the child was told, “that’s just the way he talks”. As noted above, it was noted in the trial that Mr. Allouche’s speaking voice is loud.

[131] Ms. Young also relied heavily on affidavits filed in a motion of Mr. Allouche’s adult children, Adan and Eva. Their affidavits had been filed to support Ms. Lahdiri’s interim motion to move the child’s school to Hamilton.

[132] These two adult children refused to be interviewed by the OCL. Although listed as witnesses by Ms. Lahdiri for the trial, they did not attend to give evidence. To the extent that they provided some support to Ms. Lahdiri early in the litigation they clearly did not continue to do so.

[133] Their affidavits were accordingly not in evidence for the court and do not form a basis to support the OCL’s recommendations to reduce parenting time.

[134] Although Mr. Allouche was able to demonstrate that his counsel sent all of his responding material, including that motion, it is apparent that none of it came to the attention and review of Ms. Young.

[135] For all the reasons and concerns above, the OCL did not provide a complete or balanced picture of this family and the court finds that the recommendation to reduce parenting time cannot be accepted.

Parenting Schedule – Analysis

[136] The child, who has been described as bright and insightful, clearly expressed her views and preferences to the OCL.

[137] She wished to continue spending equal amounts of time with both parents. She did not want to spend more time with one parent at the expense of the other.

[138] The child told the OCL that she may speak to either parent on the phone, whenever she wants. Neither parent prevents her from doing so. Ms. Lahdiri testified that she does not always see Mr. Allouche’s texts requesting a phone call but she does not limit their calls. Sometimes she said the father and daughter speak for 20 minutes at a time.

[139] The OCL Ms. Young observed the child spend time with each parent. There were no concerns noted with respect to the quality of the parent/child interactions. The interactions were described as affectionate with both parents.

[140] Neither FACS Niagara nor the Hamilton Catholic CAS had any parenting concerns for the child in either home.

[141] The Hamilton Catholic CAS stated in the fall of 2021 that both parents share an appropriate understanding of “M’s” medical needs and show an equal commitment to ensuring that she is provided all recommended medical treatment and care.

[142] At school, the child’s teacher advised the OCL that the child’s behaviour was the same whether she came from her mother’s home or from her father’s home. Her teacher described her as a happy child. She is a good student.

[143] Mr. Allouche, a former professor, gave evidence of his involvement in educating the child and his encouragement in her studies. Ms. Lahdiri, as a teacher, would be able to assist the child at school. Both parents are clearly capable of supporting the child in her schooling.

[144] The shared equal parenting was shown to be workable for well over a year, with the child thriving and happy. The evidence does not support that there should be a serious reduction in either parent’s parenting time.

[145] In light of the child changing residence and school, the schedule must be adjusted to ensure parenting time with each parent, a stable routine, and a minimum of travel time on the highway.

Parenting Schedule

[146] Accordingly, the regular school schedule will be as follows:

(a) Mr. Allouche shall have parenting time each weekend, to commence at the end of school on Friday until the start of school Monday morning;

(b) Ms. Lahdiri shall have parenting time at the start of school on Monday morning until the end of school on Friday;

(d) The exchange location shall be at the school, Pavillon de la Jeunesse in Hamilton, or such other location as the parties may agree to in writing;

(e) Neither party shall arrange activities for the child during the other party’s scheduled parenting time without the other parent’s consent;

(f) Both parties may attend extra-curricular activities and scheduled school events regardless of the schedule.

[147] This parenting schedule is to take effect as of Friday, March 24, 2023.

Parenting Schedule- Holidays

[148] The parties did not provide any evidence or submissions on parenting time for the holidays. Each provided a proposed holiday schedule which indicated a sharing of holidays.

[149] The court has adjusted the schedules to reflect the shared parenting schedule and as well to provide Ms. Lahdiri the opportunity of weekend time with the child.

[150] The holiday schedule is to take effect as of the date of this judgment.

Family Day Weekend

[151] Ms. Lahdiri shall have parenting time for the full weekend starting at the end of the school day.

March Spring Break

[152] Mr. Allouche shall have parenting time from the Friday at the start of March break after school until noon on the Wednesday of March break. Ms. Lahdiri shall have parenting time commencing Wednesday noon for the balance of March break.

Easter Weekend

[153] Mr. Allouche shall have parenting time starting after school on the Thursday until 4;00 p.m. on the Saturday. Ms. Lahdiri shall have her parenting time from Saturday at 4:00 p.m. for the balance of the Easter weekend.

Mother’s/Father’s Day

[154] On Mother’s Day, the child shall be returned to Ms. Lahdiri for her parenting time at 10:00 a.m. on that Sunday for the rest of the weekend.

[155] On Father’s Day, Mr. Allouche shall have his regular parenting weekend.

Victoria Day

[156] Ms. Lahdiri shall have parenting time for the full weekend each year starting at the end of the school day on the Friday.

Summer Vacation

[157] The summer vacation shall be equally shared parenting time with an exchange every two weeks on Fridays at 3:30 p.m. at a location to be agreed upon by the parties.

[158] In even years, Mr. Allouche shall have the first two-week session.

[159] In odd years, Ms. Lahdiri shall have the first two-week session.

[160] In the event that there is one extra week at the end of the summer, it shall be divided equally.

Thanksgiving

[161] Ms. Lahdiri shall have parenting time for the full weekend each year starting at the end of the school day on the Friday.

Christmas Break

[162] The parties shall share the child’s Christmas school break. The child shall reside with Mr. Allouche for the first half of the Christmas break in odd numbered years and the last half of the Christmas break in even numbered years. The child shall reside with Ms. Lahdiri for the first half of the Christmas break in even numbered years and the last half of the Christmas break in odd numbered years.

[163] The first half shall start after school on the child’s last day of school in December and end at noon on the date that is the halfway point in the Christmas break. It ends on the morning that the child returns to school in January.

Christmas Eve/Day

[164] Regardless of the Christmas break schedule set out above, in odd numbered years the child shall reside with Mr. Allouche on Christmas Eve/Morning until Christmas day at noon, and with Ms. Lahdiri from noon on Christmas day until 6:00 p.m. on Boxing Day. In even numbered years the child shall reside with Ms. Lahdiri on Christmas Eve/Morning until Christmas Day at noon and with Mr. Allouche on Christmas Day until 6:00 p.m. on Boxing Day.

Exchanges

[165] In light of my decision to change the child’s school, the exchanges are to occur at Pavillon de la Jeunesse in Hamilton.

[166] Mr. Allouche is to do the driving with the child for these exchanges. This gives him more parenting time with the child but increases his expenses for mileage. This will be considered below in the child support order.

[167] In the event that Ms. Lahdiri obtains her driver’s licence and a car, she is to advise Mr. Allouche so that both the exchange location and the responsibility for driving is reviewed.

DECISION-MAKING AUTHORITY

[168] This litigation proceeded in such an acrimonious manner that it has shown that neither parent is supportive of the other parent’s role in the child’s life.

[169] The careful shared parenting schedule set out above was necessary to ensure the child had the benefit of both her parents.

[170] Each parent sought an order for sole decision-making authority for the child. Neither wanted an order for joint decision-making.

[171] It is acknowledged that an order for sole decision-making is necessary to reduce the conflict in this child’s life.

[172] Section 16.3 of the Divorce Act provides that a court may allocate decision-making responsibility. It gives the court discretion to allocate decision-making responsibility to support and promote the best interests of the child, taking into consideration the unique facts of the case.

[173] The evidence supports that each parent is capable of making child-focused, reasonable and wise decisions.

Sole Decision-Making for Major Decisions

[174] The court is asked to choose one parent to be the sole decision-maker with the best interests of the child in mind. For many of the reasons set out in the decision regarding primary residence and school I find it is most appropriate to order that Ms. Lahdiri be the sole decision-maker for major decisions with the exceptions noted below.

[175] Ms. Lahdiri is to consult with Mr. Allouche on all important decisions, seek his input and then advise him of her decision in writing.

[176] Ms. Lahdiri is to advise Mr. Allouche in advance of any and all medical appointments and advise the names and contact for any medical practitioners of the child. Ms. Lahdiri is to promptly share all school information with Mr. Allouche.

[177] Mr. Allouche is also permitted to obtain any medical, dental or educational records connected with the child, as he wishes. Ms. Lahdiri is to cooperate and execute any required authorization to release such information to Mr. Allouche.

[178] Ms. Lahdiri is to provide Mr. Allouche with a photocopy of the child’s health care card.

Shared Decision-Making for Extra-Curricular Activities

[179] Both parents have decision-making authority to arrange for extra-curricular activities for the child to participate in during that parent’s parenting time.

Joint Decision-Making for Psychological Treatment

[180] Each parent has sought counselling for the child on their own. The OCL recommended counselling for the child be arranged.

[181] In light of neither parent being supportive of the other, it is critical that any psychological treatment of the child be a joint decision with joint involvement.

[182] Any treatment related to the child’s emotional, psychological or psychiatric needs requires both parents to make such decisions jointly.

[183] In the event of a disagreement, the parties shall try to resolve the dispute through negotiation. Failing resolution within 21 days, they shall mediate the issue with AXIS Family Mediation, or another agreed upon mediator, with the costs to be shared equally. Failing resolution at mediation, they may bring the issue before the court for resolution.

[184] Ms. Lahdiri requested an order that the OCL report be provided to any chosen counsellor.

[185] As I have found that the OCL report did not have a complete record and explanation of the parties’ history, this report should not be relied upon by any treating counsellor or practitioner. Rather, this judgment may be provided for background.

Passports and Travel

[186] Neither party has located the child’s passport and accuses the other of withholding it. This may be moot at this time as the child’s first international trip was in 2017, more than five years ago, and it may well have expired.

[187] Ms. Lahdiri shall renew the child’s passport when required. Mr. Allouche is to sign any documents necessary to facilitate the passport renewal.

[188] Ms. Lahdiri is to be the custodian of the passport. She is to provide it to Mr. Allouche when he needs it for travel. Mr. Allouche is to return the passport promptly after travel.

[189] Prior to any intended travel outside Canada, each parent shall provide the other parent with 30 days notice or as soon as is practicable before the vacation begins. Prior to travel, the travelling parent shall provide any travel authorization required and provide proof of a departing and returning ticket, an itinerary, and a phone number where “M” can be reached in case of emergency. Neither parent shall unreasonably withhold his/her consent to such trip and shall execute the necessary travel authorization form provided to him/her by the travelling parent.

CHILD SUPPORT

[190] On the parenting schedule which I have ordered Mr. Allouche has the child six nights out of every 14 or roughly 43 percent. As such, I find that s. 9 of the Child Support Guidelines applies.

[191] The parties did not provide childcare budgets for comparison such that I have resorted to calculating set-off child support calculations.

[192] Mr. Allouche’s 2021 income was $24,435. Ms. Lahdiri’s 2021 income was $56,137.

[193] Mr. Allouche would owe table support of $195 per month and Ms. Lahdiri would owe $518 per month.

[194] The set-off table child support payable by Ms. Lahdiri would be $323 per month.

[195] As Mr. Allouche must shoulder all the driving to and from Hamilton for his parenting time with the child, his child support obligation of $195 should be reduced.

[196] In the current circumstances, I find that Ms. Lahdiri should pay full table support without any set-off.

[197] As of April 1, 2023, Ms. Lahdiri shall pay $518 per month in child support to Mr. Allouche.

[198] Support deduction order to issue.

[199] If Mr. Allouche moves to Hamilton or if Ms. Lahdiri assumes responsibility for some of the transportation costs, this may well be relevant on a motion to change child support.

Retroactive Child Support

[200] The parties did not provide evidence or submissions or DivorceMate print-outs for retroactive child support.

[201] Mr. Allouche’s draft order requested retroactive child support from June 1, 2021.

[202] The parties were sharing parenting time since that time, a period of 21 months, but the exchanges were in St. Catharines. Mr. Allouche was not shouldering the driving costs during that time.

[203] For those 21 months then the set-off child support of $323 per month is owed by Ms. Lahdiri to Mr. Allouche for a total of $6,783. This shall be repaid at the rate of $50 per month commencing April 1, 2023.

Section 7 Expenses

[204] Extraordinary expenses pursuant to s. 7 of the Federal Child Support Guidelines are to be shared in proportion to the parents’ respective incomes.

[205] Before incurring any s.7 expenses for which they seek reimbursement, the parent shall advise the amount of the proposed expense and obtain the other parent’s consent in advance of incurring the expense (where possible). Such consent is not to be unreasonably withheld.

SPOUSAL SUPPORT

[206] Mr. Allouche seeks an order of spousal support from Ms. Lahdiri in the high range.

[207] The parties were married seven years. Mr. Allouche is at the end of his working life in light of his age and his health.

[208] Ms. Lahdiri is at the start of a promising career as a teacher. She anticipates her income to continue to rise and to continue to work even past retirement age.

Law on Entitlement for Spousal Support

[209] Section 15.2 of the Divorce Act, provides the court with jurisdiction to order spousal support.

[210] Section 15.2(4) notes the factors which the court is to consider, those being “the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse.”

[211] Section 15.2(5) provides that “the court shall not take into consideration any misconduct of a spouse in relation to the marriage.”

[212] Section 15.2(6) states the objectives of spousal support orders. They should:

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Analysis of Spousal Support

[213] For most of their marriage they lived on Mr. Allouche’s modest income. As of separation there was not a significant economic impact to Mr. Allouche. Ms. Lahdiri’s full-time teaching income started in 2021 when the parties were separated.

[214] The evidence before me supports a modest compensatory claim having been established. This is on the basis that Mr. Allouche sponsored Ms. Lahdiri to come to Canada from Algeria. He assisted her with her studies and drove her to her teaching placements and first job.

[215] Although the parties disagree on the extent to which he provided caregiving to their child when Ms. Lahdiri was at work, as the child also attended daycare and kindergarten, I am satisfied that there is some evidence of him providing childcare.

[216] The mid-range support with child support pursuant to the Spousal Support Advisory Guidelines is $119 per month for an indefinite duration in light of Mr. Allouche’s age and the duration of the marriage.

[217] Accordingly, an order shall be made for Ms. Lahdiri to pay Mr. Allouche spousal support in the sum of $119 per month commencing April 1, 2023 on an indefinite basis but subject to review in the event of a material change in circumstances.

OTHER ORDERS

[218] On consent, Mr. Allouche, shall pay an equalization payment to Ms. Lahdiri, of $7,091.98. The parties are to reduce this payment by the child support arrears owed by Ms. Lahdiri to Mr. Allouche.

COSTS

[219] If the parties are unable to resolve costs, the applicant father may file written submissions on costs by February 23 2023. The respondent mother may file responding written submissions by March 9, 2023. Submissions are not to exceed three pages, plus costs outlines, case law, and any applicable offers. If required, the applicant father may file reply submissions by March 16, 2023.

[220] Such written submissions are to be forwarded to my chambers in St. Catharines at 59 Church Street, St. Catharines, L2R 7N8 or may be emailed to my assistant at St.Catharines.SCJJA@ontario.ca.

[221] Failing receipt of costs submissions, within 60 days of this judgment, the issue of costs will be considered settled and the file closed.

M. J. Donohue J.

Released: February 9, 2023