COURT FILE NO.: FC-19-1717-1 DATE: 2024/05/15 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Mohammed Almasoud Applicant – and – Sukinah Auiwasheer Respondent
Self-Represented, did not attend Annemarie Roodal, for the Respondent
HEARD: May 13, 14, 2024
REASONS FOR DECISION ON UNCONTESTED TRIAL
SOMJI J
Overview
[1] The parties were married in Saudi Arabia on June 28, 2012 through an arranged marriage. They returned to Canada a week later to resume their studies. The parties had a child in November 2013, and she is presently 10 years of age. In late 2013 and early 2014, the parties started to experience marital problems. The father was struggling academically while the mother was trying to manage a newborn and keep up with her own school work. Their marital challenges continued over the next few years. The parties separated and reconciled on several occasions. However, on April 15, 2020, the mother left the home permanently because of escalating domestic violence and went to reside with her daughter at a woman’s shelter.
[2] Since separation, the child has lived with her mother, and the father has had virtual parenting time and in-person supervised parenting time. On March 15, 2023, the father was directed to leave Canada because his residency permit had expired and ordered not to return for a year. The child has not seen her father since just before his departure and last spoke to him on April 6, 2023. Since that date, the child has refused to speak to her father despite the mother’s efforts to have the child attend for counselling in order to mend her relationship with her father.
[3] A five-day virtual trial was scheduled to commence on May 13, 2024. The father did not attend. The matter proceeded to trial in his absence. The issues to be decided are:
- Have the grounds been met to proceed to trial in the father’s absence?
- What parenting order is in the best interests of the child?
- What conditions should be imposed around the child’s travel? and
- Should the mother’s request for other corollary relief be granted?
Issue 1: Have the grounds been met to proceed to a trial in the Respondent’s absence?
[4] The father brought an Application on October 14, 2020. The matter proceeded to a Trial Management Conference on July 5, 2023. At that time, the father was in Saudi Arabia, but indicated he expected to return to Canada in nine months’ time. Consequently, Summers J scheduled the trial on the May 2024 trial list. A Trial Scheduling Endorsement Form (TSEF) was completed by the parties and Summers J identified the witnesses and requisites dates for filing.
[5] Counsel for the mother advised that the father appeared virtually on April 4, 2024, before Justice Audet in assignment court and requested the trial be adjourned. According to counsel, the father’s request was denied because he could not guarantee he would obtain a visa to return to Canada, and if so, when. The matter remained on the May 2024 trial list.
[6] The father failed to file any materials for trial. The mother filed a Trial Record identifying the relief she was seeking. The mother’s materials were served on the father on April 24, 2024 at the email address he has been using to communicate with the counsel and the court. I am satisfied that the father received the mother’s trial materials.
[7] In addition, the court and the mother’s counsel sent emails to the father on May 8 and 9, 2024, providing him with the Zoom contact information for trial. The time in Saudi Arabia is 7 hours ahead of Canada. The maternal grandmother testified by Zoom, and her visual and audio connection was clear. In short, there were no detriments to the father’s ability to participate at his trial virtually.
[8] The TSEF dated July 5, 2023, clearly states that “if a party does not attend trial, an order may be made in the party’s absence.” On this basis, as well as Rule 52.01(2)(c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, I find that the father’s claim is dismissed, and the mother’s claim is allowed to proceed in the father’s absence.
Issue 2: What parenting order is in the best interests of the child?
[9] The mother seeks that she have decision-making responsibility and that the child reside primarily with her. The mother supports the child’s continued relationship with the father and is agreeable to him having discretionary virtual and in-parenting time.
[10] The primary consideration in determining a parenting plan which includes in this case primary residence, decision-making responsibility, and parenting time for the father, is the best interests of the children: s. 16 and 16.1 Divorce Act, R.S.C. 1985, c.3 (2nd Supp), as am.
[11] Section 16(3) Divorce Act sets out the following best interest factors:
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.
[12] While I have considered all the best interest factors in arriving at my decision, I address below the most pertinent factors that have informed my decision. In arriving at my decision, I relied on the filed at trial as well as the testimony of the maternal grandmother, the mother, and the child’s counsellor.
History, stability of care, and plans for care
[13] The mother has been the child’s primary caregiver since birth. While the mother acknowledges that the father was involved in the child’s life, she has been primarily responsible for the child’s schooling, medical appointments, and participation in activities. Since separation in April 2020, the mother has maintained the primary caregiving role, and the child has lived exclusively with her. The father is presently in Saudi Arabia, and it is unclear if and when he will be able to return to Canada.
[14] The mother applied to remain in Canada as a refugee and was granted protected person status in 2022. She has applied for permanent residency status following which she hopes to obtain Canadian citizenship. Her daughter is a Canadian citizen. It is the mother’s intent to remain in Canada with her daughter.
[15] The father has not provided the mother with any financial support since separation. Other than paying for the supervised parenting time visits, the father has not paid child support or contributed towards any expenses for the child. Despite her limited financial means, the mother has been able to meet the child’s personal, emotional, physical, and financial needs. The mother has degrees in bookkeeping and personal support work. She worked as a personal support worker for some time. She is presently on social assistance, but part of a program that is allowing her to develop a business which will provide her a flexible work schedule to care for the child.
[16] The mother reports that the child is doing well in school and is enrolled in various activities. The child’s counsellor, Ms. Yvonne Duala-Ekoka, who has been seeing the child biweekly since July 2023, testified that the mother’s efforts in having the child attend for counselling and activities to support the child’s continued development have paid off. Ms. Duala-Ekoka reported that the child has made considerable progress in various areas of her social, academic, and emotional development over the past year.
The nature and strength of the child's relationship with each spouse and family members and each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;
[17] The mother maintains a strong relationship with her child. The mother has also fostered the child’s relationships with her maternal aunts, uncles, and cousins many of whom reside in St. Catherines, Ontario, as well as the grandparents in Saudi Arabia.
[18] The mother supports her daughter having a relationship with her father and the paternal family. She enrolled her daughter in therapy almost immediately after observing her daughter’s reluctance in the spring of 2023 to speak to her father. She has encouraged her daughter to have contact with both her father and her aunt in Saudi Arabia. She also sends the child’s school report cards and updated photos to the father via her family members.
Child’s views and preferences
[19] According to the mother, the child is upset with her father and resistant to contacting him. This is corroborated by Yvonne Duala-Ekoko who testified that the child’s anger and trauma around her father is deep. According to Ms. Duala-Ekoko, while the child is unwilling to initiate contact with her father, she believes the child is open to having a relationship with him and the paternal aunt. She hopes that the father will reach out to the child to rebuild that relationship.
[20] It is important to note that the mother has paid for all the counselling sessions with no financial assistance from the father, a testament to her commitment to ensuring what is in the child’s best interest. The mother has attended sessions at Ms. Duala-Ekoko’s request, but the father has failed to respond to requests for participation.
[21] While the mother supports the father having virtual parenting time with the child, there have been instances where the father has abused his parenting time. For example, the mother identified calls, two of which were recorded, where the father made derogatory remarks about her, tried to influence the child to take sides, and involved the child in adult issues.
[22] The mother testified that the supervised in-person visits between February 2021 and the spring of 2023 went well. The father did not engage in any appropriate discussions with the child and was respectful. She supports in-person parenting time should the father return to Canada, but requests that she have some discretion on the parameters of the visits both for her own and the child’s safety. The mother is concerned that the father will attempt to negatively influence the child or take the child to Saudi Arabia. The father asked for information to renew the child’s Saudi Arabian passport which the mother did not consent to. She believes that if the father is permitted to take the child out of the country or that she and the child return for even a visit to Saudi Arabia, the father will prevent the child or both of them from returning to Canada. This fear is corroborated by her experience in 2016 when the father obstructed her return to Canada to finish her studies and where they had planned to eventually reside.
[23] For all these reasons, I find the mother’s request that the father’s parenting time be discretionary is reasonable.
Culture and linguistic history
[24] The child stopped attending Saturday Arabic school during the pandemic, but the mother continues to expose her to the Arabic language through music, art, and dance. The mother hopes to find a smaller Arabic learning group for her daughter once she demonstrates more interest in it. The mother celebrates Muslims traditions such as Eid with her daughter and extended family.
Family violence
[25] The mother identified several incidents of emotional and physical abuse by the father. She described incidents where the father threatened her, threw things at her, hit her with a broomstick and kicked, hit, pushed, and choked her. There were also instances where the father took her phone and electronic devices as punishment. Some of these events occurred during a trip to Saudi Arabia in 2016 and some in Canada. On August 29, 2019, the mother called a crisis line for help. She and the father separated for a short time but then reconciled.
[26] The acts of violence continued to escalate over time. On March 21, 2020, the father asked the mother to massage his feet before she went to sleep, and she refused because she was tired. The father became infuriated. The following morning at 4:37 am, she found herself unable to breathe because he had his hand on her mouth and nose. The father told her that he been unable to sleep because she was snoring. The father hit her with a cardboard box and a half-filled plastic bottle. There was a call to her parents which the grandmother recalled was unusual given it was very early in the morning. The grandmother described the call as distressing because her daughter was crying and screaming, and she could also hear the father yelling in the background. That same day, the mother called a crisis line and developed a safety plan. Following further aggressive incidents by the father, the mother moved to a women’s shelter with the child on April 15, 2020.
[27] The Children’s Aid Society of Ottawa investigated the matter. On May 19, 2020, they informed the parents that after speaking with the parties and the child, they had determined that the child was at risk for emotional harm due to ongoing domestic violence. Nonetheless, they would be closing the file since the parties were living separate and apart, had commenced family proceedings, and were aware of the potential impact on the child of experiencing conflict.
[28] The father was criminally charged and later acquitted of assault (suffocation) and assault with a weapon. However, he was convicted of breaching his condition to not communicate directly or indirectly with the mother. The breach arose during a phone call recorded by the mother where it was apparent the father pressured the child to relay information to the mother.
[29] The father suggested in his initial Application that the paternal grandfather had called a friend to offer that all criminal charges would be dropped if the father paid a sum of money to the mother. However, the affidavit filed by the friend Mr. Al Zahir contains no such information.
[30] In the absence of any evidence to the contrary, I accept the mother’s evidence and find that she experienced emotional and physical violence by the father. This experience informs her fear of the father, and I find, warrants the conditions she has requested below to ensure her and the child’s continued emotional and physical safety.
[31] In conclusion, I find the current best interest factors support the continuation of the status quo which is that the mother remain the parent solely responsible for decisions related to the child, that the child continue to live primarily with the mom, and that the father have discretionary parenting time with the child. There will be an Order that:
i) The mother have sole decision-making responsibility for the child. ii) The child will reside primarily with the mother in Canada. iii) The father will have virtual parenting time at the discretion of the child. iv) The father shall not speak negatively of the mother or discuss adult issues with the child. In the event that the father does not comply with this requirement, then his virtual parenting time shall be suspended until such time as the mother agrees. v) Should the father return to Canada, he shall have in-person parenting time with the child, but the frequency, duration, location, and level of supervision for the in-person parenting time will be at the mother’s discretion. Given the parameters of in person parenting time, notice of relocation is not required by the Respondent mother to the Applicant father. vi) The mother shall keep the father informed of the child’s progress twice per year by email at the father’s known email address mealmasoud@gmail.com and those communications shall be via the mother’s brother, Ibrahim Mahdi. The father shall notify Mr. Mahdi of any change in his contact information. vii) In the event of an emergency, the parents shall communicate with each other through Ibrahim Mahdi. The mother shall provide her brother’s contact information to the father within the 10 days of this Order.
Issue 3: What conditions should be imposed in relation to the child’s travel?
[32] The mother seeks to travel with the child outside of Canada without the father’s consent. She does not believe the father will cooperate in renewing her daughter’s passport. Given she is the primary caregiver of the child, the request to renew the child’s Canadian passport and to travel with the child without the father’s consent is granted.
[33] The father previously held the child’s Canadian passport until his departure in 2023 and only returned it to the mother after counsel had indicated they would bring an urgent motion. The father also sought to renew the child’s Saudi Arabian passport, and the mother has refused to cooperate fearing he will attempt to take her there. In 2016, the father refused the mother and child to return to Canada for many months. For all these reasons, I find the mother’s concerns that the father will attempt to return the child to Saudi Arabia are valid and warrant conditions restricting his ability to travel with the child.
[34] There will be an Order that:
viii) The mother shall be permitted to obtain/renew the child’s passport without the consent of the father. ix) The mother shall be permitted to travel with the child outside of Canada without the father’s consent. x) The father shall not be permitted to travel with the child outside the province of Ontario, including to Saudi Arabia.
Issue 4: Other corollary relief
Divorce
[35] The mother seeks a divorce. The parties were engaged on May 19, 2012, but their wedding ceremony took place on June 28, 2012. Both parties identify June 28th as their wedding day and when they first commenced residing together. June 28, 2012 is also the date they have referred to in their immigration documents.
[36] The marriage certificate translated from Arabic refers to a “marriage contract in record No. (16/86/33) on June 28, 1433 AH (19/5/2012 AD) Folder 86, page 16.” According to the mother, the 1433 refers to the Hijri Calendar as opposed to the Gregorian calendar. The engagement date of May 19, 2012 is marked in the Gregorian calendar. Based on the affidavits filed and the mother’s testimony, I am satisfied that the date of marriage is June 28, 2012. I am also satisfied that the persons referred to in the Clearance Certificate are the same persons identified in the marriage certificate. The divorce is granted pursuant to the Divorce Act.
Name change
[37] The mother requests the right to amend the child’s last name to include her own last name. The father indicated at a court appearance of April 26, 2023, that he opposes the name change, but did not put forth pleadings explaining his reasons for refusing the request. There will be an order that the mother can apply to change the child’s name to add her own name.
Financial disclosure
[38] During the course of their marriage, the father collected social assistance. His reported income for 2017, 2018, and 2019 is less than $11,000 annually. The father reported an income of $18,000 for 2020 in his financial statement. However, he has not provided any income tax returns for 2020 onward. The mother believes that he did collect CERB during the pandemic.
[39] The mother believes that during the years he was in Canada, the father had additional income working as an uber driver, construction worker, installed, and running businesses involving bringing students to Canada and exporting cars. Nonetheless, the father has not provided the mother with child support or s. 7 expenses since separation. The mother does not know what the father’s employment or income was at the time of his departure.
[40] The mother does not seek child support at this time because she has insufficient information regarding the father’s present employment or an evidentiary basis to impute income. She also notes that there is no reciprocating agreement to enforce a Support Deduction Order in Saudi Arabia. At present, the mother seeks only financial disclosure.
[41] There will be an Order that:
xi) the Applicant father shall provide to the mother by email at Canada577@hotmail.com the following information: a. proof of his employment and income since January 2023; b. commencing July 1, 2024, and every July 1 thereafter proof of his annual income including any copies of pay stubs or proof of income payments made or received by him; and c. information related to any change in income and employment within 10 days of the change.
Costs
[42] Entitlement and quantum of costs is in the discretion of the judge: Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[43] The mother is the successful party at trial and presumptively entitled to costs. She seeks partial indemnity costs. I find there is nothing in the mother’s conduct that would disqualify her from a costs award in this case.
[44] Counsel is 2002 call. Counsel billed 27 hours for trial preparation at a rate of $300/hr for total costs of $9,153 which I find is more than reasonable. Having considered that the mother was the successful party, the complexity of the hearing, the billings and rates, I find that a costs award in the fixed amount of $5,500 payable in 30 days is fair and reasonable in this case.
Somji J.